The Endangered Species Act of 1973 was created and made law in order to help stop the eradication of certain species of animals, plants and their habitats. As such, a struggle of power has arisen between the states’ guaranteed right to “own” and manage its wildlife and a federal government bent on exercising its power over the state(s), seemingly given to it by Congress. Animal rights and anti-hunting groups have seized on the opportunity to use to their advantage to end all hunting.
If each of the 50 United States is granted, through our Constitution, the power to manage its own wildlife, how can the government take power over the state to accomplish that? Have we simply “allowed” the Congress to exert its will over that of the people, or has Congress written laws for themselves that grant them that power?
Below is taken from the beginning, or Section 2, of the Endangered Species Act of 1973 – AN ACT To provide for the conservation of endangered and threatened species of fish, wildlife, and plants, and for other purposes.
I have put emphasis on some parts of the information for the purpose of drawing your attention to it. I may have also created hyperlinks for your convenience in order that you can more easily access certain information.
SEC. 2. ø16 U.S.C. 1531¿ (a) FINDINGS.—The Congress finds and declares that—
(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;
(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;
(3) these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people;
(4) the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to—
(A) migratory bird treaties with Canada and Mexico;
(B) the Migratory and Endangered Bird Treaty with Japan;
(C) the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere;
(D) the International Convention for the Northwest Atlantic Fisheries;
(E) the International Convention for the High Seas Fisheries of the North Pacific Ocean;
(F) the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and
(G) other international agreements; and
(5) encouraging the States and other interested parties, through Federal financial assistance and a system of incentives, to develop and maintain conservation programs which meet national and international standards is a key to meeting the Nation’s international commitments and to better safeguarding, for the benefit of all citizens, the Nation’s heritage in fish, wildlife, and plants.
(b) PURPOSES.—The purposes of this Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program
for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.
(c) POLICY.—(1) It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act.
(2) It is further declared to be the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered
species.
The federal government has exerted its powers over the states through enforcement of the Endangered Species Act in at least two ways – through Congress’ creation of international treaties and the Commerce Clause.
If we look at the U.S. Constitution, we can see what kind of power Congress has over the states. Section 8, Line 3 –
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
And Section 8, Line 17 –
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings
This tells us that the Government of the United States only has power over the District of Columbia and other federally owned land within the states and the power to regulate commerce.
Case law also has shown us two things. In United States v. Shauver in 1914, Judge Trieber ruled,
“It is the people who alone can amend the Constitution to grant Congress the power to enact such legislation as they deem necessary. All the courts are authorized to do when the constitutionality of a legislative act is questioned is to determine whether Congress, under the Constitution as it is, possesses the power to enact the legislation in controversy; their power does not extend to the matter of expediency. If Congress has not the power, the duty of the court is to declare the act void. The court is unable to find any provision in the Constitution authorizing Congress, either expressly or by necessary implication, to protect or regulate the shooting of migratory wild game in a state, and is therefore forced to the conclusion that the act is unconstitutional.”
In 1915, in United States v. McCullagh, the same Judge Trieber further spelled out who has power to regulate wildlife management and takings.
“[T]he exclusive title and power to control the taking and ultimate disposition of the wild game of this country resides in the state, to be parted with and exercised by the state for the common good of all the people of the state, as in its wisdom may seem best.”
But, for the power hungry Congress, they discovered that with the proper wording of international treaties, they could gain the power and take control over the regulation of hunting and fishing within the states. This is one way the federal government now has control over migratory birds.
The other form of abusive powers comes within the Commerce Clause.
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
It is my understanding that over the past several years, most lawsuits involving endangered species are argued with utilization of the Commerce Clause. In the U.S. Supreme Court case of Hughes v. Oklahoma, in 1979, we see that the state of Oklahoma passed a law prohibiting the transportation of minnows outside of the state if they were grown and produced within the state.
Hughes argued that this law was a violation of the Commerce Clause and Justice Brennan, delivering the opinion of the court, ruled that it was a violation of the CC.
Oddly enough, in 1986, in a similar case before the Supreme Court, a bait dealer in Maine attempted to argue the same case and lost. In Maine v. Taylor, the bait dealer, Taylor, argued that Maine’s law that banned the importation of certain bait fish, known to have certain diseases, was an infraction against his right to free commerce. The Court saw this as a potential harm to the greater fisheries of the state and therefore ruled to protect the fishery rather than the act of commerce.
Over the years, several cases have been heard at different levels of the courts and in those cases arguments have been made as to whether the attempt to protect threatened or endangered species, falls within the power of the federal government because Congress has the power to “regulate commerce”.
How does all this relate to the reintroduction of wolves into the three areas of the Northern Rocky Mountains – specifically areas of Central Idaho, Northwestern Montana and Yellowstone National Park? It’s extremely complicated and has not been tested in the U.S. Supreme Court. We may not be that far away as the lawsuits mount and the people get more outspoken.
In 1994, the U.S. Fish and Wildlife Service Completed its requirement of writing the Final Environmental Impact Statement. When recommendations were complete, it was decided to use those of the USFWS and declare the wolf experiment a “Nonessential Experimental Wolf Population”.
Before we proceed, it should be noted that the FEIS also defines what that title means.
Nonessential – Under the provisions of the 1982 amendment of the ESA [Section 10(j)] which authorizes reintroductions of experimental populations, experimental populations must be
designated either “essential†or “nonessential.†“Nonessential†refers to an experimental population whose loss would not be likely to appreciably reduce the likelihood of the survival of the species in the wild. Except in national wildlife refuges or national parks, “nonessential†populations are treated under Section 7 of the ESA as “proposed species.†Thus, federal agencies must only confer with the FWS on activities that the agencies believe might jeopardize the species. Moreover, the agencies would be under no obligation under Section 7(a)(2) to avoid actions likely to jeopardize the species. In national parks and national wildlife refuges they are treated as threatened species. Congress expected that most experimental populations would be considered “nonessential.â€
And the definition of Experimental Population.
Experimental Population – A 1982 amendment to the Endangered Species Act established the experimental population designation [Section 10(j)] and defined an experimental population as: “… any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from non-experimental populations of the same species.†Further in the amendment it was made clear that the term applies to populations that are derived from endangered or threatened species for which the Secretary of Interior has determined that a release will further the conservation of that species. The experimental population designation denotes more flexible management for introduced endangered species or threatened species.
This definition, as provided by the USFWS, is extremely important in the debate on wolves and the Endangered Species Act.
Back in 1993, when the USFWS decided it was going to create a “Nonessential Experimental Wolf Population” in Central Idaho, Northwestern Montana and Wyoming, why did they have the power and authority to do that? Are we to assume that because Congress wrote and enacted the Endangered Species Act that this gave the USFWS power over these states, essentially telling them they now have no control over the wolf or any of the effects of protecting the wolf? This would also include management of the elk, deer, moose and just about everything else that is directly or indirectly affected by the reintroduction of the wolf.
Was the act of reintroduction illegal to begin with? If the people of these states own and have the power to manage its own wildlife populations, how can the federal government do otherwise?
These same regions where declared protected habitat for the wolf by the Secretary of Interior in 1973, prior to the reintroduction. Even in the 1987 Wolf Recovery Plan for the Northern Rocky Mountain gray wolf, it spells out once again what the intentions of the Endangered Species Act are. This is specifically what it says about state participation and responsibility.
This recovery plan is intended to provide direction and coordination for recovery efforts. State responsibility for many plan items is proposed because the Endangered Species Act (Act) of 1973, as amended, provides for state participation/responsibility in endangered species recovery. Task responsibilities outlined in the implementation schedule are suggestions contingent on appropriations, priorities, and personnel and funding constraints.
I have read nothing that indicates to me that the federal government has complete control when administering the Endangered Species Act. We can only assume that the feds believe they have power through the ESA to force their will onto the citizens of this region and are getting away with it. After all, there was never a vote taken to see if the “people” wanted wolves dropped in their backyard.
Do we have a treaty with Canada or any other country that through its wording, gives Congress power to tell Idaho, Montana and Wyoming what to do? I know of none.
Does Congress have the power over these states in the reintroduction of the wolf and all its effects because of the Commerce Clause? I would have to say it would be a real stretch to do that but nothing concerning the law and its interpretation is surprising anymore.
It seems then that we have to go back to the Endangered Species Act and the definition of the population of wolves created by the reintroduction of them to the area.
The ESA spells out that its purpose is to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions”.
What are the “appropriate” steps necessary to protect the gray wolf? Is it appropriate to take away the power of the states in the ESA’s attempts to conserve and species and strip the people of their property rights? The ESA also says that “all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act.”
This does not tell us what the Federal departments’ and agencies’ “authorities” are! This still leaves us with a question as to whether or not the USFWS even had the authority to reintroduce wolves into these regions without first obtaining the will of the people. People had an opportunity to comment on the procedure and who really cares whether each states’ fish and game department agreed or disagreed. The question remains, did the people want this.
We may never be able to legally determine who actually does or does not have the power to enforce the Endangered Species Act when it doesn’t involve international treaties or the Commerce Clause, but when you look into the definition of “nonessential experimental populations”, it would appear that it further punches holes all through Judge Donald Molloy’s temporary injunction ruling that put the wolf back under protection via the ESA.
Once again, the Final Environmental Impact Statement for wolf reintroduction, pg. 333 clearly defines what “nonessential” means. (I quoted completely above.) Reintroductions have to be labeled either “essential” or “nonessential”. That’s the law. “Nonessential” refers to an “experimental population”, which this was also declared as such. Nonessential means that if they lost all the wolves they introduced it, “would not be likely to appreciably reduce the likelihood of the survival of the species in the wild.” These “nonessential” populations are looked at as “proposed” species and it further states this: “Moreover, the agencies would be under no obligation under Section 7(a)(2) to avoid actions likely to jeopardize the species.” It also says Congress expected nearly all reintroductions to be “nonessential”.
Let’s also look at the definition of “Experimental Population”, also quoted in its entirety above. This can be found on the same Final Environmental Impact Statement, pg. 331. This is part of what’s commonly referred to as part of the 10(j) rule. I clearly defines what an “experimental population” is: “any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from non-experimental populations of the same species.â€
This tells us that as part of what the Interior Secretary may deem an attempt to “further the conservation of the species”, releases “experimental populations” of wolves and that these “experimental populations” remain geographically separate from any “non-experimental” populations.
In brief, the wolf reintroduction population was labeled, as required by the ESA, as a “Nonessential Experimental Population” – a population that would be viewed as having no bearing one way or the other on wolf recovery and is to remain separate from all other wolf populations. Nonessential means that if the reintroduced wolves were lost, it would have no bearing on wolf recovery AND the “experimental population” as defined in the ESA, 10(j), they hope it will help with species recovery and that they are under “no obligation” to avoid actions that would “jeopardize the species”.
Examination of these definitions, along with a look at who might have power of these matters, we are now left with more questions that need serious attention.
One question would be why can’t the citizens of this area better protect themselves and their property from overgrown and hungry wolf populations? These are “Nonessential Experimental Populations” as I defined above. The law also states that the USFWS is under no obligation to avoid actions that would jeopardize the species. So under whose obligation are they?
Second big question is, why are there even lawsuits allowed in this matter? Are there really any grounds? After all, the success or not of this “experimental population” of reintroduced wolves should have no bearing on the recovery of the wolf. The 1987 Wolf Recovery Plan stated that “natural recovery” was high for Northwestern Montana, moderate for Central Idaho and low for Yellowstone.
But we have to move beyond that because obviously there are lawsuits. Taking a look at those and adding to the idiocy of Judge Donald Molloy’s non-scientific decision to return the wolf back under protection of the Endangered Species Act, as I wrote about earlier, we can only further question his motives and legal declarations in his ruling.
If the definition of this reintroduced wolf population is “nonessential” and “experimental”, which requires that these three sub populations, one in Idaho, one in Montana and one in Yellowstone, to remain separate, then how can any intelligent person suggest that “genetic exchange” must take place? Genetic exchange, or “genetic connectivity” as Judge Molloy made up, is when wolves from these separate “experimental species” leave their designated areas and go mate with other wolves. Seems utterly ridiculous to me.
To fight this issue, I believe it must be done from three perspectives. The states can argue over who has the power. Do the states retain that power as the constitution reads and case law suggests because they “own” the wildlife and can manage it as they see fit? Or has the federal government once again ignored the U.S. Constitution and created laws giving themselves control over the states.
Or, we can continue to attack the Endangered Species Act, its definitions and interpretations and try to fight activist judges, like Molloy, and try to make some sense out of our court system. Either way it will not be easy but I can assure you that simply giving in to the environmentalists will only insure more demands and more lawsuits until they have reached their desired goals. History has proven that and it can’t be ignored.
The third attack strategy may be best in the long haul. We have to stop electing politicians who are power hungry and have little regard for the Constitution. The future of this great country is in trouble if our elected officials continue to create laws that give them power over the people. “We the People”, what part of the Constitution have they forgotten? Think of this each and every time you go to the polls and if you don’t go, it’s time you started. “We the People” have more power, provided we don’t give it away.
The citizens of this area should not have to keep giving. I believe the vast majority of people want there to be sound scientific management of gray wolves and that management has to be done at the state level not the federal.
The will of the people needs to be heard.
Tom Remington
