Reminder: Comments due today on Wildlife Services Idaho Wolf EA.

Wolf management plan examines killing of pups and sterilization of wolves.

The Wildlife Services issued an Environmental Assessment at the beginning of August. Today is the last day to comment on the EA which calls for killing pups which have been orphaned by their control actions, sterilization of wolves, and increased killing of wolves in response to livestock depredations.

Western Watersheds Project and the Wolf Recovery Foundation have submitted comments on the EA which you can read here:
WWP & Wolf Recovery Foundation Comments on Gray Wolf Damage Managment in ID Draft EA

Here is the post I made earlier in the month:

Wildlife Services has issued a draft Environmental Analysis which examines a myriad of ways to kill wolves. Comments on the plan are accepted until August 31, 2010.

Idaho Wolf EA

“Management strategies would be developed for individual situations by applying the WS Decision Model (Slate et al. 1992). When appropriate, farm management practices (animal husbandry), frightening devices and livestock guarding animals would be recommended and utilized to reduce wolf damage to livestock. In other situations, WS might potentially utilize foothold traps, snares, ground shooting, chemical immobilization and euthanasia, and aerial shooting to remove individual problem wolves. An additional potential management method under the Proposed Action would be the infrequent taking of pups in or near the den, in those cases where removal of adult wolves due to chronic depredations on livestock might leave the pups defenseless and subject to starvation. Another potential management method under the Proposed Action, as an alternative to total removal of some chronic depredating wolf packs, would be removal of most or all wolves except the alpha pair from a chronic depredating pack. One (or both if possible) of the alpha animals would concurrently be live-captured, surgically sterilized, radio-collared, and released to maintain and defend their territory against other wolf packs which might be more likely to prey on livestock. This approach would only be considered on a case-by-case basis, and only with the concurrence of IDFG and potentially affected livestock producers.”

Wildlife Damage Management

NOTICE OF AVAILABILITY: Idaho The U.S. Department of Agriculture (USDA), Animal and Plant Health Inspection Service (APHIS), Wildlife Services (WS) has issued an environmental assessment (EA) which evaluates issues and alternatives related to conducting gray wolf damage management in Idaho. The EA analyzes potential environmental effects of a proposed program to protect livestock and other domestic animals, wild ungulates, and human safety using a variety of approved methods in an integrated, adaptive management approach.

A copy of the EA can be obtained at the following website:

Idaho Wolf EA

The EA is also available on CD or printed copy and can be obtained by contacting:

Idaho WS State Office
9134 W. Blackeagle Drive
Boise, Idaho 83709
telephone: (208) 378-5077
fax: (208) 378-5349


Written public comments will be accepted through
August 31, 2010
and can be submitted via e-mail to:

or by mail or fax to the Idaho WS State Office
(address and fax listed above).

To be most useful, comments should be as specific as possible, and include factual information or refer to credible information which supports the comments.

For questions or requests for additional information, please contact the Idaho WS State Office (contact information listed above).


  1. Virginia Avatar

    Sent my comment – I guess it is not too late – not after midnight yet! These wolves belong to me as well as to the ranchers and hunters of Idaho.

  2. Mark Gamblin (IDFG) Avatar
    Mark Gamblin (IDFG)

    Virginia – are you an Idaho resident?

    1. JB Avatar

      Is residence in Idaho a prerequisite to commenting on the management of a federally-listed endangered species?

    2. Ken Cole Avatar

      No. Anyone can submit comments on EA’s.

    3. jon Avatar

      JB, they play that card everytime. If you are not from there or live there, you have no say in the matter and you don’t have a right to your opinion. That is how people over there feel about outsiders.

    4. Ryan Avatar

      Can you blame them Jon??

  3. JB Avatar

    Folks here might be interested in this quote from the original, 2005 revision to the 10(j) rule:

    “Before wolves were reintroduced in 1995, we predicted that agency wolf control (including legal regulated take in defense of private property) would remove an average 10 percent of the population annually. We do not foresee this final rule increasing wolf mortality, including regulated take by the public in defense of their private property or by States or Tribes in response to unacceptable impacts to ungulate populations, to levels that average more than 10 percent annually, or to a level that threatens wolf recovery.”

    Note: According to the Service’s annual report, the 2009 estimate for Idaho’s wolf population was 843. Of those animals, 134 were legally harvested, 93 were killed by in control actions, and 19 were killed by other human sources. That is 246 wolves, or 29% of Idaho’s wolf population killed by human sources.

  4. Mark Gamblin (IDFG) Avatar
    Mark Gamblin (IDFG)

    JB – of course pubic involvement in implementation of the ESA or other laws and rules is not only appropriate it is a civic responsibility. The ESA blurrs the distinction, but Idaho’s (and most other state’s) constitution asserts “ownership” of the wildlife within it’s borders, held in trust for the residents of that state. The Public Trust Doctrine firmly establishes the trust responsibility of the state, for the state’s wildlife resources, on behalf of the residents of the state. Virginia asserts “ownership” of Idaho wolves – equal to ranchers and Idaho hunters. The question is relevant.

    1. JB Avatar

      Thanks, Mark. I understand state’s position and obligation under the public trust doctrine. However, there is more “blurring” the distinction than just the ESA. If I’m not mistaken, at least some of these wolves occur on National Parks and National Wildlife Refuges, places that belong to everyone and have explicit preservation, as opposed to multiple-use, missions. I wonder if Idaho is taking this into account as it plans future management activities with respect to wolves?

    2. Ken Cole Avatar

      If you are asserting, which I think you are, that the IDFG living up to the Public Trust Doctrine regarding wolves then why is the IDFG so God Damned secretive about wolf management? If you want conservationists to trust you then allow your employees to answer some basic questions when I call them.

      The secrecy within the department is bullshit and, frankly, I’m a little pissed that every time I try to ask some direct questions I am told that I have to speak to your lawyer or some crap like that. I’m a polite person, maybe too polite for my line of work, but the bureaucratic two step gets a little old and I’m losing patience.

      Do you want trust? Then the stonewall should come down.

  5. Mark Gamblin (IDFG) Avatar
    Mark Gamblin (IDFG)

    JB – to be clear, I was not/am not speaking to the ongoing litigation or status of wolves outside of Idaho.

  6. bob jackson Avatar
    bob jackson

    MSG and his ilk, I’d say are no different than the state biologists, game wardens and outfitters on the borders of Yellowstone who chaff at the idea that THEIR state wasn’t allowed management ……. thus hunting and fishing in THEIR states part of this park.

    And the only reason all those federal BLM and Forest Service lands are managed the way they are by Idaho F&G is because those agencies are shirking their responsibilities. The state may claim use of animals but it is still the federal DIRT these animals are walking on…that belongs to everyone.

    Thus, just as mineral rights are the thorn of every rancher, Idaho’s attitude of SUPERIOR Animal Right means nothing if the federal govt. says THEIR dirt is being compromised by state activities!!!

    MSG, your agency is a squatter and if I were you I’d be a bit more humble about your relationship with the OWNERS of the land.

    I see this type of attitude and resultant behavior all the time in Iowa ….where long time farm renters start to feel entitlement to the ground they rent. When the hammer finally comes down and they get that certified Sept. 1 rst termination letter all hell breaks loose. But all the temper tantrums don’t do a bit of good. They were owners only in their minds, the same as Idaho F&G is only the temporary renters of federal ground. If I was MSG i’d be kissing the slimmy feet of every federal employee, thanking them for not having to deal with only private land owners.

    But alas, just the same as every child abuser blames the child so does the state agencies who have no respect for their provider, blame the fed land owner for the abuse they do to this land.

    1. JEFF E Avatar
      JEFF E

      a bit heavy handed…but otherwise spot on

    2. WM Avatar


      Using your “federal dirt” argument would you then prefer federal law enforcement (FBI) enforcing the laws of the state on all federal lands outsice National Parks in the West, such as crimes against people (eg. murder, assault), or property (theft) and civil tort claims, rather than state and local law enforcement?

      1. bob jackson Avatar
        bob jackson


        There is DIRECT law and there is indirect. Thus states are GIVEN money by the feds to inforce that states laws. But in the end control is in the feds hands. For example I use to go 120mph on Montana’s highways (passed a cop once at that speed and nicely waved to him) then the feds said no more money if you don’t enforce a speed limit. So no more fun by me in that ’65 robin egg blue 2 door hardtop Galaxie 500.

        With federal lands the feds have even more say in what happens. “They” exercise this right to control some federal lands more than others ….. such as Yellowstone which was formed before there was a state ……or military installations.

        I’d compare the state – federal control issue to a parent giving their kids an allowance …and then the freedom to do with it as they please. They either say pat them on the head and say “good boy” for wise spending or put the hammer down if they spend it foolishly. Then either more restrictions are put on this money or it is yanked entirely away. Another example would be a parent who sees the kids acting up but decides to wait and see if they can solve it on their own.

        Not to put down the need for everyone top to bottom, township, county or state can do to ORIGINATE creative thinking and law but the tried and true stability comes from the feds.

        Thus, with wildlife we have state law where the things that go pitter-patter over the federal ground and swoosh through the air and water are handed to the MSG’s for childs play. But then we have the feds in the form of officer O’Malloy saying “you’re busted” (oops, wrong Cheech and Chong person) …I mean Judge O’Malloy saying to the composite MSG, “You have been a bad boy. Bend over for that willow branch wiping”.

        The only problem I see is the MSG”s strong retort on states rights is like he(s) throwing a temper tantrum…just a kicking their legs in all directions no different than the crop renters who try to figure out a way to keep farming the land that is not theirs.

        If it is not this then it is even something more sinister in individuals wanting more power (happens a lot in dysfunctional organizations) and they compromise any and everything to try and obtain it.

      2. WM Avatar


        I understand what you are saying, but will maybe address that at a later time because I don’t think you are quite correct.

        However, you didn’t answer the original question about whether federal law enforcement should be involved in administering state law on federal lands (excepting National Parks and maybe a couple of other special reservations). So, what do you say regarding the question above?

      3. bob jackson Avatar
        bob jackson

        Yes, I did answer it. to say again; Basically one (the feds) let the dependents (states) take care of as much as they can. The idea is to let those dependents gain in maturity as much as possible…but if they overstep you bring them back in the fold. Thus if the states can do the job the feds want great, whether it is state or federal land. Exceptions, such as Yellowstone and military installations…where the states have little knowledge of those concepts…need to stay under federal jurisdiction.

        It is no different than corporations who farm out parcels or piece meal work. They pay the “subordinates” for the parts but they (the feds in this case) maintain control.

  7. Mark Gamblin (IDFG) Avatar
    Mark Gamblin (IDFG)

    Ken –
    See my response to JB. I was making one direct point. Wildlife is a common trust resource held and managed by the state on behalf of the residents of each state. Virginia asserted that she “owns” wolves as much as Idaho ranchers, hunters and one might assume, other Idaho residents.
    If Virginia is a resident of Idaho then she is correct. If she is a non-resident then she is incorrect.

    1. JEFF E Avatar
      JEFF E

      see above post. If Marks assertion about Virgina’s residency was correct (it’s not) then Judge Molloy would have ruled differently.

    2. Ken Cole Avatar

      JeffE’s response is the correct one here. It is pretty apparent that Idaho lost it’s “ownership” of wolves once they became listed under the ESA.

      1. WM Avatar


        Are you certain ESA addresses the “ownership” issue? I am not sure it does. Maybe somebody who has studied it more carefully can answer the question.

        It is my limited understanding the ESA avoids that sticky issue by focusing on managing species for conservation to meet the national and treaty obligation goals of the act, and treats states as partners in that management framework.

        Said another way, it is my understanding that “ownership” of wildlife by states within their borders remains with the state. But, federal management as prescribed by federal statute trumps the state ownership (See the 1976 Supreme Court decision of Kleppe v. NM, which addressed burros on federal land managed under a specific statute for that species).

    3. Ken Cole Avatar

      “Wildlife is a common trust resource held and managed by the state on behalf of the residents of each state.”

      That is by tradition as JB points out in his post below about Kleppe v. New Mexico.

      What about a response to my question about secrecy or are you going to do the bureaucratic two step to that as well? For an agency that manages wildlife under the public trust doctrine it sure doesn’t give much information to the public when they ask for it. CYA

  8. Pointwest Avatar

    If I remember correctly, this ownership of game animals was tested in the courts in the 30’s when Bannock and Shoshone Indians from the Fort Hall reservation, in Idaho, were killing elk in Wyoming. Jackson Hole had thriving outfitter and dude ranch operations and did not like Shoshone and Bannock killing elk in the spring and only eating the unborn calves….a delicacy to the Indians. Some Indians were imprisoned and a court battle ensued.

    It was fought in the courts for several years (memory??) The Indians asserted hunting rights in any state via their treaty with the Federal Government. It may have even gone to the Supreme Court, but in the end, the Indians lost and the state of Wyoming asserted control over the elk in Wyoming. Henceforth, Indians, even though they had treaties with the Federal Government, could only hunt in the state in which they reside.

    I believe this was very unfair to the Shoshone and Bannock. The Tetons, Yellowstone, and Jackson Hole were traditional hunting grounds. Some of the Sheep Eaters (a shoshonian tribe) even resided in Yellowstone before being forced onto the reservation but are now not allowed to hunt there even though they they have a signed treaty with the Federal Government guaranteeing them hunting privileges to their traditional hunting grounds.

    I guess this is what the Indians got for signing a treaty without consulting an attorney. I’ll bet they’ll never do that again.

    1. Pointwest Avatar

      It may turn out that if some organization got the law overturned granting states “Public Trust” of wild animals, that Indians throughout the US could assert their treaty rights with the Fed and start killing elk, grizzly, and wolves anywhere in their traditional hunting grounds, at any time of year and and in any quantily oblivious of State’s hunting regulations. I assume they could hunt in National Parks too.

      1. Moose Avatar

        The Makah had to/continue to have to jump through federal hoops to hunt whales. Last I heard a EIS was holding them up.

      2. Pointwest Avatar

        If hunting whales was in thier treaty, they would only need to appeal to the Supreme Court that hunting whales is sacred and an expression of thier religion and they might get a decision superceding the ESA on grounds that it violates thier constitutional rights.

        Maybe wildlife should belong to the Indians and they should be making all of the decisions. It was theirs, after all, before we tricked them into signing all of these crazy treaties giving away thier land to us.

      3. WM Avatar


        You are replowing old ground. The Makah whale hunt involves alot of stuff and they have pretty much done all they can to position themselves for the next LEGAL hunt.
        Check here for the status:

        Recall a few years back, a couple of rather independent Makah tribal members took personal initiative to do their own version of a hunt and went about it all wrong. Shot a big whale numerous times in the wrong part of the head, lost a large bore gun over the side, and after a long suffering for this dying whale, lost it too. There were prosecutions over this rogue hunt which were a fiasco from start to finish involving assertion of tribal jurisdiction over the federal court. What a mess it was on so many levels.

        And, just to make a point, Indian law is very complex, and so much so that, recently, certain states now require new lawyer bar testing as a mandatory part of the bar exam. Problem is it is so complex in so many areas the bar testing is only an acknowledgement to the new would-be lawyers that they should be very careful before trying to practice in that field.

  9. Mark Gamblin (IDFG) Avatar
    Mark Gamblin (IDFG)

    Another example of the original topic generating a discussion that goes well beyond that topic. The point I was making is simple: wildlife is held in trust for the residents of each state.

    Congress has chosen to supercede state authority in limited circumstances. The ESA is one of those narrow circumstances. So are Indian Treaties. Neither the ESA or Treaties with other sovereign nations (Recognized Indian Tribes) negate the wildlife resource trust responsibilities and authorities that states are assigned by the Public Trust Doctrine. Those trust responsibilities are affirmed in several Supreme Court decisions.

    1. Pointwest Avatar

      ++Mark G. writes: Congress has chosen to supercede state authority in limited circumstances.++

      I can guess why. I do not understand the details of Federal law and constitutional law, but I would guess if Congress begins passing laws trumping state control, it might open the door for Indian tribes to assert their treaty rights with the Fed.

    2. Moose Avatar

      When a private citizen requests WS services do all subsequent services come out of the WS fed budget? Is it the same if a State requests services?

  10. Pointwest Avatar

    Just looked up the actual facts and I guess the court battle was in the 1890’s rather than the 1930’s…

    It went to the Supreme Court on May 25, 1896 after a one Bannock Indian named Race Horse was thrown in jail for poaching elk.

    John H. Ward, Sherriff, etc., vs. Race Horse (Case No. 841)

    “In delivering the majority view, the Court argued that the point of dispute lay between Article 4 of the Fort Bridger Treaty giving the Bannock the right to hunt on the lands of the United States and the act under which Wyoming was admitted as a state on July 10, 1890. This act provided in part that the State of Wyoming . . . is herby declared admitted to the Union on an equal footing with the original states in all respects whatever . . . , the act contained no exception or reservation in favor of or for the benefit of Indians. Wyoming thus had an equal right with other states to control hunting on her own public lands.”

    Race Horse was freed from jail but the Shoshone and Bannock from Fort Hall in Idaho were never again allowed to hunt in Wyoming.

    I would say that to assert Federal control over game management at the state level, decisions such as the above would need to be overturned and, unless Congress intervened with Federal laws protecting wildlife, Indians would be able to hunt game at any time of year and in any quantity anywhere in the areas provided by their treaty with the Federal Government. Even if Congress intervened on behalf of wildlife with new laws protecting them, the Indians may sue on grounds that a violation of their treaty is unconstitutional base upon the Bill of Rights and based upon freedom of religion arging that hunting is scacred to them.

    Be careful you wolfies.

    1. Pointwest Avatar

      I guess the decision is published on the net….

      Click Here

    2. JB Avatar


      Read Kleppe v. New Mexico:

      The Public Trust Doctrine is common law. [Actually this is a misnomer and has led to some confusion; the Public Trust Doctrine comes out of water law and has been loosely applied to wildlife. Legal scholars usually use “Wildlife Trust” to refer to the analogous concept].

      Anyway, essentially states have the right to make whatever laws they deem necessary, so long as those laws don’t conflict with the Constitution. Over time, states have asserted ownership of the wildlife that reside within their borders and passed laws designed (usually) to promote the conservation of those species, and the courts have upheld the authority of states to do so. However, state law does not supersede federal law. If you read, Kleppe v. New Mexico, you’ll see the Supreme Court specifically points this out with respect to the management of wildlife on federal land. Specifically, the Property Clause of the Constitution states:

      “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

      In Kleppe, the Supreme Court saw no reason why wildlife (in that case wild horses) should be exempt. This brings up an interesting legal question: Who owns the wildlife that occurs on federal lands? The state of Idaho asserts ownership of wolves despite the fact that the vast majority of wolves occur on the federal lands of the United States.

      Yet, in Kleppe, the court held:

      “The [Property] Clause must be given an expansive reading, for ‘[t]he power over the public lands thus entrusted to Congress is without limitations,’ United States v. San Francisco, 310 U. S. 16, 310 U. S. 29, and Congress’ complete authority over the public lands includes the power to regulate and protect the wildlife living there.”

      Mark will tell you that the applying Kleppe to all wildlife on federal lands would represent a significant departure from existing traditions in wildlife management. I do not disagree; however, I personally, have trouble reconciling Idaho’s assertion of ownership with the Supreme Court’s view under Kleppe. To be clear, I am not suggesting that Idaho does not have authority to manage wolves (or any other wildlife); however, I do think their assertion that Idaho (or rather the citizens that reside therein) own wildlife that live on the public lands of the United States rests on shaky legal ground.

      1. Elk275 Avatar

        I would hate to see what would happen if the federal government decided that the wildlife on federal lands was to be managed by them. The problem: Private landowners would then say if the federal government owns the wildlife on federal lands, then I own the wildlife on my land. If this came to be, then the wildlife of this country would live in a far different environment and not for the better. There is a movement in this country for the landowner to own the wildlife.

        I would not wish for that to happen.

      2. Ralph Maughan Avatar


        The federal government doesn’t just decide to do things like this. Such a move would have to pass Congress, and that is pretty much impossible. Then the President would have to sign the bill.

  11. Ralph Maughan Avatar

    Thanks for the discussion JB,

    I have always believed that the Kleppe decision [Kleppe v. New Mexico] means the federal government could take over management of every species of wildlife on the public lands of the United States.

    Of course, political reality stops them from doing this, but if politics changed, it would be constitutional.

    1. JB Avatar

      Thanks, Ralph. I agree on both counts. However, I was trying to make a more subtle point. While Kleppe is really about conflicts between state and federal law and so doesn’t address the point of ownership, the ruling pretty clearly implies that the ownership of wildlife on federal lands is with the federal government. While I agree that the federal government is very much unlikely to assert ownership authority with respect to wildlife, Kleppe (at least in my mind) suggests that the state’s claim of ownership of wildlife on federal lands is faulty. If one accepts that wildlife on federal public lands is the property of the people of the United States, the state’s obligation to manage wildlife is fundamentally changed–they have a responsibility to more than just their own citizens.

    2. WM Avatar

      Ralph, JB,

      Maybe it is a distinction without a difference in the end, but nonetheless a difference. The apparently limitless power of Congress under the Property Clause to “regulate and manage” wildlife on public lands IS DIFFERENT from “ownership” of wildlife which states still (perhaps rightfully) claim. I don’t think Kleppe speaks to this issue. It speaks to regulation of federal uses of wildlife (or other creatures the federal government chooses to regulate under a duly enacted law) on federal lands. This trumps state regulation if the state regulation is inconsistent with a federally asserted right to regulate on federal lands (and under certain circumstances off federal lands).

      So, it seems it would be entirely appropriate and accurate for Mark Gamblin to refer to wolves in ID as “owned” by the state and held in trust, whether they are ESA listed or not, and whether on federal or private land. An ESA listed species is under federal regulation and management (in cooperation with states as set forth in management agreements like MOU’s). When a species is no longer listed it is (under the law as it is now) under the management of the state. This seems to be the conventionally held belief/tradition – that states own the wildlife within their political boundaries.

      Am I incorrect on this?

      1. Elk275 Avatar

        About 20 Years ago, I was at a lecture on doctrine of public trust at Montana State University. The speaker was an attorney with the solicitor general’s office in Washington D.C. I remember one of the points in the lecture on public trust and ownership of wildlife was a case that originated with oyster beds on the east coast in the 1800’s and went to the Supreme Court. Does anyone have any knowledge of that case?

      2. WM Avatar


        I think the case you are thinking of is Arnold v. Mundy, decided by the Supreme Ct of NJ (1821) (ruling that on navigable rivers, water and its products- including oyster beds- are common property to all the people of New Jersey.). The US Supreme Court did not decide this case. It is one of the first public trust cases in the US, but as JB points out the “public trust” doctrine as you would have likely heard it thirty years ago has to do with water rights.

      3. Elk275 Avatar

        The case is:

        The first was Martin v. Waddell (1842), in which a landowner along the New Jersey coast tried to exclude others from harvesting oysters in the mudflats of his property. Martin claimed that he owned the seashore based on a land grant from the king of England made before the United States declared independence.

        The case went to the U.S. Supreme Court, where Chief Justice Roger Taney ruled the king could not grant or give away property held “as a public trust,” and that “since the revolution, the people of each state became themselves sovereign; and in that character, held the absolute right to all their navigable waters, and the soil under them; for their own common use…including the animals living on it.”

      4. WM Avatar


        Sorry, Martin v. Waddell is the US Supreme Court case which references Arnold v. Mundy decided 20 years earlier. I just forgot. It deals with the same facts and issues. It is a pretty famous case. In undergraduate school I wrote a paper for a graduate level political science class on the public trust doctrine (water), as it was then being revived by a law professor by the name of Joseph Sax at St. Louis University. The concept has also been attempted to advocate for “in-stream flows” to keep water in streams for recreation and aquatic life but for the most part has hit a brick wall because of antiquated Western water rights law, which allows rivers to be dried up for “beneficial use” outside the streambed.

    3. WM Avatar


      I see we were thinking along the same lines. Wish I had the benefit of seeing yours before posting mine.

      I do not think Kleppe contemplated federal ownership of wildlife, and that idea/language was probably killed behind closed doors in justices’ discussion well before the opinon took the form of a first draft. In fact, such language is conspicuously absent in the opinon. Federal ownership of wildlife on federal land would create a firestorm that blow across this country in a heartbeat, and result in legislation to snuff it out. IMHO.

  12. JEFF E Avatar
    JEFF E

    The Migratory Bird Treaty Act (MBTA) of 1918[xiv] represented one of the first major federal legislative attempts to protect a particular type of wildlife. The first of four treaties for the protection of migratory birds was signed with Great Britain (for Canada) in 1916,[xv] and the MBTA was the national enabling legislation for the treaty. It prohibited the taking of migratory birds except under federal guidelines and provided strict civil and criminal penalties.[xvi] Migratory birds were viewed as useful for agricultural pest control, and it was becoming apparent that restrictions on the popular hunting of waterfowl were needed to arrest depletion of waterfowl populations.[xvii] The Act sparked tensions between federal and state management authority, tensions that continue to shape federal involvement in the regulation of wildlife to this day. The constitutionality of the MBTA was first challenged in the seminal case of Missouri v. Holland.[xviii] The State of Missouri argued that it had sole authority to regulate the wildlife within its borders, but the U.S. Supreme Court disagreed. The Court held that the federal enabling legislation, properly enacted as a result of the treaty power, took precedence over state law by virtue of the supremacy clause of the Constitution.

      1. Pointswest Avatar

        Yeah…the state vs Fed thing is messed up.

        Someone should step up with the following arguments.
        The problem with the body of law governing wildlife is that it is based upon old science. New science has taught us that we cannot look upon an elk as a single entity as state laws do. We cannot look upon an elk herd as a single entity as state laws do. We cannot even look upon a species as a single entity as federal laws do.

        Wildlife needs to be viewed in the context of an ecosystem that extends across state and even national boundaries. It is therefore impossible to effectively manage wildlife at the state level and the body of law intended to do so will only lead to the destruction of wildlife.

        Congress would need to step in with sweeping changes. I know it will probably not happen in my lifetime but it should.

  13. Pointwest Avatar

    I think the Kleppe decision is summarized here:

    “In short, these cases do not support appellees’ claim that upholding the Act would sanction an impermissible intrusion upon state sovereignty. The Act does not establish exclusive federal jurisdiction over the public lands in New Mexico; it merely overrides the New Mexico Estray Law insofar as it attempts to regulate federally protected animals. And that is but the necessary consequence of valid legislation under the Property Clause.”

    My reading is that the Fed can only override particular laws but cannot “establish exclusive federal jurisdiction” within a state. Further, I think the wild horse and burrow issue is something the states wanted nothing to do with. Unlike big game, wild horses and burros did not generate revenues from license and tag sales and only presented a drain to state coffers. The states wanted to pawn the wild horses and burrows off on the Fed…or that is what it I can remember of this issue.

    If I had to guess, if the Fed steps in and begins regulating hunting in states, it will open the door for Indians to ignor state laws assert their treaty rights to hunt on federal land.

  14. JB Avatar

    I don’t have time at the moment to go into detail, but I believe the following passage is most relevant to the point I was/am trying to make:

    “Appellees argue that if we approve the Wild Free-Roaming Horses and Burros Act as a valid exercise of Congress’ power under the Property Clause, then we have sanctioned an impermissible intrusion on the sovereignty, legislative authority and police power of the State and have wrongly infringed upon the State’s traditional trustee powers over wild animals. The argument appears to be that Congress could obtain exclusive legislative jurisdiction over the public lands in the State only by state consent, and that in the absence of such consent Congress lacks the power to act contrary to state law This argument is without merit….

    Appellees’ claim confuses Congress’ derivative legislative powers, which are not involved in this case, with its powers under the Property Clause. Congress may acquire derivative legislative power from a state pursuant to Art. I, § 8, cl. 17, of the Constitution by consensual acquisition of land, or by nonconsensual acquisition followed by the State’s subsequent cession of legislative authority over the land. Fort Leavenworth R. Co. v. Lowe (1885). In either case, the legislative jurisdiction acquired may range from exclusive federal jurisdiction with no residual state police power, to concurrent, or partial, federal legislative jurisdiction, which may allow the State to exercise certain authority.

    But while Congress can acquire exclusive or partial jurisdiction over lands within a State by the State’s consent or cession, the presence or absence of such jurisdiction has nothing to do with Congress’ powers under the Property Clause. Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause. “A different rule would place the public domain of the United States completely at the mercy of state legislation….”

    Thus, appellees’ assertion that “[a]bsent state consent by complete cession of jurisdiction of lands to the United States, exclusive jurisdiction does not accrue to the federal landowner with regard to federal lands within the borders of the state,” is completely beside the point; and appellees’ fear that the Secretary’s position is that “the Property Clause totally exempts federal lands within state borders from state legislative powers, state police powers, and all rights and powers of local sovereignty and jurisdiction of the state,” is totally unfounded. The Federal Government does not assert exclusive jurisdiction over the public lands in New Mexico, and the State is free to enforce its criminal and civil laws on those lands. But where those state laws conflict with the Wild Free-Roaming Horses and Burros Act, or with other legislation passed pursuant to the Property Clause, the law is clear: the state laws must recede…. “

    1. JB Avatar

      The toddler is off to bed, so I can elaborate a bit more.

      (1) I am not suggesting that the federal government will or even should seek to exclusively manage wildlife on federal lands.

      (2) I acknowledge that Kleppe is a ruling about who has jurisdiction over federal lands (and the wildlife residing therein) when state and federal laws/interests conflict.

      (3) I also acknowledge that the wildlife/public trust doctrine is a long standing tradition, and a pillar of the NA model of wildlife conservation…

      However, what we see in the State’s claims of “ownership” of wildlife distorts (or at the very least oversimplifies) the wildlife/public trust doctrine. In Geer v. Connecticut, Judge White provides a long and thoughtful discussion about the nature of ownership of wild animals that should be required reading for any student of wildlife. White argues:

      “While the fundamental principles upon which the common property in game rest have undergone no change, the development of free institutions had led to the recognition of the fact that the power or control lodged in the state, resulting from this common ownership, is to be exercised, like all other powers of government as a trust for the benefit of the people, and not as a prerogative for the advantage of the government as distinct from the people, or for the benefit of private individuals as distinguished from the public good.”

      Yet, this was all part of the analysis, and really only tangential to the ruling, which concerned whether a Connecticut statute conflicted with the commerce clause (Geer was later overruled in Hughes v. Oklahoma in 1979).

      Regardless, since Geer wildlife, like water, has been viewed as a resource that is owned by no one and managed by the government for the good of the people. The point I want to make is, in the case of federal public lands it is very much UNCLEAR which people wildlife should be managed for (i.e. who the owner is). True, Kleppe is ultimately about federal jurisdiction over federal lands, and it is unambiguous that Congress has the power to make determinations about how lands that belong to the United States should be managed (“[W]e have repeatedly observed that ‘the power over the public land thus entrusted to Congress is without limitations”); however, I believe it is also important that the Court explicitly includes wild horses and burros as resources over which Congress has authority. As the property clause only gives Congress authority to pass laws, rules, and regulations “respecting the Territory or other Property belonging to the United States”. Thus, the Court implicitly acknowledges that the wild horses and burros residing on federal public lands BELONG TO the United States. Were they not to belong to the United States, then Congress would have no authority over them.

      So why is this problematic? States continuously assert ownership over wildlife within their boundaries, which they manage for the citizens that reside therein. Yet, if wildlife on federal lands belongs to all U.S. citizens (not just the citizens of the state in which a park, forest or refuge occurs), then the state’s obligations and duties with respect to the management of wildlife that reside on these lands are altered. Specifically, states have an obligation to manage wildlife in the interests of ALL their owners (i.e. U.S. citizens), not just the residents of the state in question.

      1. Elk275 Avatar

        So whose interests do we manage for? It seems to me that the American people are more interest in the wildlife of Lindsay and Paris and there resulting trials and tribulations for that “wildlife”. I
        believe that less than 20% of the American people really care.

      2. Pointwest Avatar

        Reading Kleppe left me with the impression that the Fed can either set guidlines for state law or might trump specific laws but must allow states overall sovereignty to make and enforce laws regarding wildlife.

        In practical terms, if the local-yocals do something that is too unpopular with the nation as a whole, the Fed will step in. Otherwise, its hands off.

      3. WM Avatar


        ++However, what we see in the State’s claims of “ownership” of wildlife distorts (or at the very least oversimplifies) the wildlife/public trust doctrine.Yet, if wildlife on federal lands belongs to all U.S. citizens……. ++

        I would like to address these statements, because I think your analysis of the law may not be incorrect. I spent a little time last night reading “Wildlife Law, A Primer,” (Eric Freyfogle and Dale Goble, Island Press [2009]). These law professor-authors are also the writers of one of the very few case book texts on wildlife law. Perhaps you have access to either of the references. I will return to their writings in a moment.

        It is important to remember, from a Constitutional perspective that all powers not specifically enumerated in the Constitution are reserved to the states. Sovereign power in our federal system is from the states themselves, for it was the states which sought independence from Great Britain. THIS IS A VERY IMPORTANT concept that seems to get lost on many who post here. The federal government gets its power from the states united for specific purposes which are set forth in the Constitution. Over time, the federal government (as states united and with representation in Congress and an election of a President through state driven voting processes) has expanded its influence over time through the passage of more and more laws austensibly under those enumerated powers often challenging the actions of individual states (usually for very good economic protectionist or civil rights reasons), under the Commerce clause, other provisions, and in the case of Kleppe v. NM the Property clause. Federal – state relations are often strained, and it seems more so recently.

        Back to Greyfogle’s book. Chapter 2, entitled “State Ownership and the Public Interest,” explores the historic and current state of the law, and specifically references numerous state constitutions (CA, CO, VA, MN, AK, LA, and more) which say something to the effect that, “all wildlife, both resident and migratory,..are property of the state [AZ]. State Supreme Courts have cited these state Constitutional declarations in opinions interpreting state law, even quite recently and many years after the Kleppe decision, which we know applies to rules for the moment deals ONLY with the protection/disposal of wild burros and horses under a specific federal law for that purpose.

        Soooooo, the states believe they have an ownership interest in wildlife and either explicitly or implicitly manage this interest in trust (also a complicated concept in practice which Freyfogle addresses in another chapter), and state that the beneficiaries are residents of the their states. I did not detect in the authors writings any reason states should back away from this view of the law or that there was any kind of trend to do so, and in fact through the remainder of the book there is frequent reference to “state ownership in wildlife.” They do, however, briefly acknowledge the hammer which exists in Kleppe in which the federal government could enact its own laws for fishing, hunting and wildlife management on federal lands, but they don’t seem to worried about it (See. p. 206)

        ++Yet, if wildlife on federal lands belongs to all U.S. citizens (not just the citizens of the state in which a park, forest or refuge occurs), then the state’s obligations and duties with respect to the management of wildlife that reside on these lands are altered…..Specifically, states have an obligation to manage wildlife in the interests of ALL their owners (i.e. U.S. citizens), not just the residents of the state in question.++

        Kleppe does not say wildlife BELONGS to all US citizens, nor does it imply it. In fact, I am not even sure the Wild Horse and Burro statute uses words of ownership (belong). It just very matter of fact, says the federal government is going to protect and manage them as a matter of law. [ See text of the act here : ]

        This is interesting, because Kleppe only speaks of the right of the federal government to manage and protect wildlife on federal lands. The power of the federal government emminates from the ownership of the land to control what goes on there. AND, except for what we incorrectly perceive as federal ownership of wildlife – like wildlife in national parks and wildlife refuges- the federal statutes have not made an effort to significantly dig into the asserted “ownership interest” the states assert. NP’s, where wildlife is protected because the feds own the land and make the rules, they can do what they want and trump state laws, but as a manner of practice they incorporate chosen state fishing and hunting laws as long as they do not conflict with the NP wants to accomplish on this federally owned reservation.

        As I indicated before (and I think you agree), as a practical matter the federal government delving heavily into day to day wildlife management on most federal lands (think huge tracts of FS and BLM land, often with adjacent or intermingled state or private lands) would be a horrendous fight with the states (a further showing how different the views of people at home differ from those we send to Congress to represent us).

        WATER – Similarly, many state Constitutional declarations specifically address water, which you mention as another area of tension. States believe “waters of the state” should be put to beneficial use in the state for the benefit of the residents of the state (especially those that are higher in the watersheds). There are complex historic bodies of law surrounding how water is administered in these states, under different theories like “prior appropriation” and riparian rules of administering them. Up against this is a relatively new developing body of laws asserted by the federal government in “reserved rights” that are believed to accompany certain types of federal land ownership. There is, as you know, much tension in these areas -wildlife and water.

        I am not saying these rules applying to wildlife and water are right, but I believe your reference to the way these legal doctrines are analyzed may require a bit more thought. States believe they still have a dominant role to play with their reserved powers, for that is the way the Constitution was written, and that is the way they are playing their hand. That does not mean these rules are morally or equitably right as our country becomes more populated and Congress seeks to make inroads against state proprietary interests for the common good. But the manner in which these rules will be developed is by the federal government (Congress and the Executive branch) hacking away and expanding the scope of “enumerated” powers, which chip away at, or even eviscerate, the states reserved powers.

      4. WM Avatar

        GEEZ, Sorry, the first paragraph after the quote should read:

        I would like to address these statements, because I think your analysis of the law MAY BE INCORRECT.

      5. JB Avatar


        I will apologize up front for being brief, but the more I write, the less my argument seems to be understood. I recognize that neither the text of the Wild Horses and Burros Act nor Kleppe explicitly addresses ownership of wildlife. However, the Property clause is ONLY applicable to “Territory or other Property belonging to the United States”.

        Specifically, this clause states: “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States ….”

        If the property in question belongs to another, the property clause does not apply. Yet the Court explicitly applied the Property clause in the case of wild horses and burros. From my perspective, this application suggests that the court viewed the wildlife that occurred on the Federal lands, the wildlife that was the subject of the statue in question, as the property of the Federal government.

        An alternative interpretation is that the court was referring only to the lands on which the wild horses and burros reside; those lands, without question, belong to the federal government and the government has the power (under the property clause) to make rules concerning their management. However, in the closing paragraph of the decision, the court suggests that the Property clause could *possibly* be applied to the management of wild horses and burros on private lands, though they purposefully leave this question unanswered. If the Property clause is capable of being applied to the management of wild horses and burros on private lands, then the federal government MUST have some ownership in these animals (again, the Property clause is only applicable to the property of the federal government). Here is the last paragraph of the decision:

        “Appellees are concerned that the Act’s extension of protection to wild free-roaming horses and burros that stray from public land onto private land…will be read to provide federal jurisdiction over every wild horse or burro that at any time sets foot upon federal land. While it is clear that regulations under the Property Clause may have some effect on private lands not otherwise under federal control…we do not think it appropriate in this declaratory judgment proceeding to determine the extent, if any, to which the Property Clause empowers Congress to protect animals on private lands or the extent to which such regulation is attempted by the Act. We have often declined to decide important questions regarding “the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case,” … or in the absence of “an adequate and full-bodied record.” …We follow that course in this case and leave open the question of the permissible reach of the Act over private lands under the Property Clause.”

        — If you read the case it becomes clear that federal ownership does not necessarily mean federal management. It would, however, undercut State’s claims of exclusive ownership of the wildlife that reside within their borders.

        P.S. I use the Freyfogle and Goble text in my policy class, so I am familiar with the content. It really is a great read for anyone at all interested in wildlife.

      6. Elk275 Avatar

        Thanks WM and JB for your insight on this issue and others. It takes a long time and some smarts to write a well written narative.

      7. JB Avatar

        Thanks, Elk. This is a fascinating topic for me; one that appears to have no clear answer.

    2. JB Avatar

      I’d also add that I very much appreciate the thoughtful discussion. I know how much time it takes to formulate such lengthy responses. Kleppe is far from definitive on the subject of who owns wildlife on federal lands (let alone wildlife in general), but it certainly seems to “leave the door open” to federal ownership. I wish Robert Hoskins or JimT would weigh in on the topic.

      1. WM Avatar


        Now we are getting closer to defining the difference in our views and how Kleppe may or may not apply.

        When the federal government said it will manage and protect wild horses and burros as defined under the act to meet national goals as “components of the land,” it meant exactly that. The Property Clause as Kleppe states gives them that exclusive right on federal land. Thinking more broadly, federal agencies manage land under various statutes, but it is really all about managing the land, and, in some instances, the things upon the land including wildlife, if it remains there (think national parks and wildlife refuges). Kleppe, and previous cases, acknowledge, “…the complete power that Congress has over public lands necessarily includes the power to regulate and protect wildlife living there.” Notice there is no reference to “ownership” in this statement, AND the Court purposely sidestepped the issue of a possible federal property interest in Kleppe with the following language: “As an initial matter, it is far from clear that the Act was not passed in part to protect the public lands of the United States or that Congress cannot assert a property interest in the regulated horses and burros superior to that of the State. But we need not consider whether the Act can be upheld on either of these grounds, for we reject appellees’ narrow reading of the Property Clause.”

        Here is where I think we disagree – the very issue the Court sidestepped. You have given your view above. This is mine: If these horses and burros move off federal land and on to private land, the federal government can still say under the burro law they have exclusive responsiblity for their “management and protection” without claiming a property or ownership interest in them. In fact, without very specific enabling legislation for the particular species I do not see how they can make a claim of “ownership.” For example, elk, deer or any other animal moving out of a NP onto private land (even wolves), for example the federal government cannot say it has a right to “protect and manage” off the federal reservation absent a specific federal law to that effect. To my knowledge they have no legal basis to do so, if the animals are not on federal land and there is no applicable federal law giving management rights and protections.

        [An aside: Another basis for distinguishing Kleppe, is that wild horses and burros are really not “wildlife” in the classic sense, because they are feral (they or their predecessors were once owned by someone). And, that may also be a distinction as to the approach for federal management. So if the animals make it to private land, the federally asserted right still trumps a state right under their Estray statute. Kind of like the horses (let”s say you are boarding someone else’s horses) that got out of the corral. Just put them back where they belong (or otherwise manage them). You don’t own them but you are managing and protecting.]

        Another angle to consider regarding how jurisdiction over wildlife occurs, is the manner in which the federal government asserts rights under the Migratory Bird Act, Bald Eagle Protection Act and even the ESA. The government just says we have a national interest in regulating these things. State rules are inferior to federal rules when there is a conflict. The federal government really doesn’t need to claim an ownership/property interest in the “wildlife” in order to regulate, whether it is ducks, eagles or wolves. It is the simplicity of this approach that makes it a sensible interpretation.

        At least that is the way I read the Constitutional framework, case law, and the logic behind it, including the open question in Kleppe. My guess is there are probably more than a few law review articles on this exact issue out there somewhere. It is too big an issue to have not had some thoughtful minds more adept than mine address the matter since the Kleppe decision.

        I did find a 2007 law review article which addresses some of this as applied to ANILCA, AK national parks affected by it and an Alaska wildlife statute and how everything fits together. (PREEMPTION OF STATE WILDLIFE LAW IN ALASKA: WHERE, WHEN, AND WHY, by JULIE LURMAN and SANFORD P. RABINOWITCH, [24 Alaska L. Rev. 145]

        p.s. Maybe one day we can have a beer and talk more about this stuff, or maybe just talk about other things. In the meantime I too enjoy our discussions. I also would hope RH, JimT, or someone new who is knowledgeable would enter the conversation.

    3. JB Avatar


      I decided to take your advice (good idea) and look for law reviews on the topic. So far I’ve only come up with one and it only addresses the issue of ownership tangentially; however, it does address the Court’s reading in Kleppe directly. Here is the most relevant excerpt:

      “…The Court, guided by congressional statements of purpose and intent, viewed wildlife as an integral component of an ecosystem. It specifically rejected New Mexico’s assertion–at least in the context of federal land management–that animals constitute one form of property to be regulated under one (state) authority, while land constitutes another, over which Congress holds title and will protect for proprietary or other purposes. Stated somewhat differently, the Court ruled that Congress had the authority, under the Property Clause, to protect federal lands along with all of their linked natural components, as ecosystems, and not simply as “property.”

      Second, although addressing the issue only tangentially, the decision in Kleppe implicates the notion that ecosystems cross property boundaries and that regulation or management of ecosystem components should not be limited according to those artificial constraints. In the facts that led to the Kleppe dispute, the private grazing system extended from private ranch lands to public grazing allotments. As noted above, the statute protects animals even when they stray from federal to private lands. Thus, a federal regime that was, at least in theory, upheld by the Supreme Court as a valid exercise of the Property Clause in order to protect overall ecosystem values governs the overall “grazing ecosystem,” which is shared by privately-owned livestock and their wild counterparts. It is important to note, however, that the Court expressly declined to speculate about the extent to which this authority might permissibly intrude on the rights of private landowners. Thus, under the Kleppe Court’s interpretation of the WHBA and the Property Clause, the federal government can manage lands and species on federal lands on an ecosystem basis, but the extent to which those powers can cross onto private lands remains less certain.”

      Adler, R. W. (2003). The Supreme Court and Ecosystems: Environmental Science in Environmental Law. Vermont Law Review (27): 249-.

  15. pointswest Avatar

    The Civil War was fought, ostensibly at least, over “state’s rights” and hundreds of thousands of Americans gave their lives over the issue. It is not something to be taken lightly.

    One of the few things I agree with Regan about is that, in general, the less centralized a government is, the less wasteful is government taxation and administration. I believe there are some very important benefits to “state’s rights.” On the other hand, if the Fed had not trumped the law in South Carolina, slavery would have continued in that state to this very day.

    The state’s rights idea falls flat on its face in the case of environmental law, however. I think the only way around the issue is to show that management of wildlife and many natural resources, ( i.e. rivers) is simply impossible on a state level. This is probably where things are headed.


Subscribe to get new posts right in your Inbox

Ken Cole