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so Legislation and Administration It has long been recognized that necessary laws and regulations consti- tute an important tool of resource management, particularly as a means of imposing restraints. In the wildlife field, these restraints have roots in antiquity. Indeed, restrictions on taking game were enacted in pre- Revolutionary times in all of the 13 American colonies. Legislation and administrative regulations have served the positive role of establishing policy and promoting improvement of the environ- ment in the interests of technically sound wildlife management. Changes in long-established cropping procedures commonly are prompted by new knowledge derived from research and may involve the removal of restrictions. Biological realism of this kind is the frame- work for achieving lasting productivity on land and water. JU R ISD I CTI ONS Under United States constitutional provisions, the states have primary legal responsibility for wildlife protection and administration, both through their administration of the well-established and recognized doctrine of public ownership of wildlife, and through police power. Neither of these functions was transferred to the federal government at the time the federal constitution was adopted; hence they remain with the states. The Constitution does, however, reserve to the federal government specific functions such as treaty-making and the regulation of interstate commerce. Both have frequently been applied for wildlife 226
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Legislation and Administration 227 conservation purposes. These actions sometimes limit state jurisdiction in ways that affect the management of areas that are of national . . ~ slgnlilcance. STATE R ESPONSI B I LITI ES Early assumption by the states of wildlife administration as a trust of the people was upheld by the U.S. Supreme Court in 1896 in the widely quoted case of Geer vs. Connecticut. This decision probably was influ- ential both in the establishment in every state of a governmental unit to handle wildlife affairs, and in passage of a large and complex body of state laws or regulations. The doctrine of "state" (public) ownership of wildlife is attributed to English common law. Now, however, in England and other western European countries the landowner has property rights in the wildlife of his land and hence, by contrast with the American scene, laws and regu- lations dealing with wildlife are few and simple. Responsibilities of the landowner are far greater than in America, and the functions of govern- ment are correspondingly less. As a result, Europeans have not devel- oped such well-established units of the government concerned with wildlife (Sigler, 19561. Although state responsibility for wildlife is widely recognized, in most states wildlife and its recreational use are subordinate to other re- source interests. In many states, for example, wildlife production has not been recognized as a beneficial use of land or water, so that when conflicts arise between this and other uses, wildlife frequently receives little consideration. A major example is the administration of water law in western states (discussed later in this chapter), but others occur. The reason may well be that wildlife values are to a great extent social val- ues, being recreational and esthetic, and are not readily measured in conventional economic terms. Although the situation is changing for the better, as wildlife values receive growing recognition year by year, in certain kinds of competition the position of wildlife is still predict- ably weak. When a highway is proposed along a trout stream, it is still normal for most engineers to be unconcerned about the welfare of fish. Seldom is the right of eminent domain used by either the state or fed- eral government in obtaining a wildlife area. The Fish and Wildlife Ser- vice estimates that only about two percent of its refuge land purchases are by condemnation. State jurisdiction relates primarily to the control of wildlife and to
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228 Land Use and Wildlife Resources the manner in which hunters and fishermen may utilize the resource- not to the habitat upon which wildlife production is dependent. The landowner holds the key to production through his control of the habi- tat, and thus he needs to be a partner in management if the resource is to yield public benefits. National and I nternational Functions The jurisdiction of the federal government over wildlife results from several specific authorities provided in the Constitution. The treaty- making power is reserved to the federal government, and under this the United States has treaties with Great Britain on behalf of Canada (1916) and with Mexico (1937) to protect and manage the migratory bird resources of North America (Magnuson, 1 965a). By 1900 it was already clear that the states could not adequately protect migratory birds. There were several efforts early in the century to make this a federal responsibility, but until the Migratory Bird Treaty was ratified in 1916, and later upheld by the Supreme Court as constitutional, there was a clear conflict with state authority. As a re- sult of the treaties with Canada and Mexico, primary jurisdiction over migratory birds is assumed by the federal government, which has de- veloped a strong program to implement its responsibility. The states now cooperate closely in the conservation of migratory birds, particu- larly in enforcing protective regulations. The common arrangement is for states to adopt the federal regulations as their own and to carry out enforcement with their own officials in state courts. The success of the North American waterfowl conservation program, which depends upon international as well as state-federal cooperation, is the envy of other parts of the world where it has not been possible to develop such a comprehensive and effective program. Legal Basis of State-Federal Cooperation The first important federal law in the wildlife field was the Lacey Act of 1900, which depended for its constitutionality upon federal author- ity to regulate interstate and foreign commerce. The most important provision of the Lacey Act declared it to be a federal offense to trans- port across state boundaries wildlife that had been taken illegally in any state. This law, in effect, placed the strength of the federal govern- ment behind the enforcement of state wildlife laws. At first, however, the influence of the Lacey Act was minimal because there were few
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Legislation and Administration 229 protective laws to be invoked. Later, as the states increased their legal restrictions and enforcement efforts, this federal legislation became im- portant. It played a significant role in checking the widespread illegal market hunting of that day. Gradually, however, it became evident that the Lacey Act should have been broader, and in 1926 Congress covered the black bass by a special act having provisions similar to the statute of 1900. This was amended to include certain other fishes in 1947. By the late 1960's measures were being considered to extend federal pro- tection to the alligator, long harassed by an interstate traffic in hides. Having assumed responsibility for migratory bird conservation under terms of the treaties, the Congress passed several laws to achieve this objective. The Migratory Bird Conservation Act of 1929 recognized a system of refuges being developed for migratory birds, and the Migra- tory Bird Hunting Stamp Act of 1934 was intended to raise revenue for acquiring refuge lands. Migratory bird refuges and waterfowl pro- duction areas by 1969 numbered about 350 and totaled some 7~/: mil- lion acres. Many of these refuges are large and depend for their effec- tiveness upon dams or dikes to regulate water levels on flowages that sometimes cover many thousands of acres. Some areas within these ref- uges are cultivated and seeded each year to choice waterfowl food plants. Some are periodically flooded to increase mast production, as from oak. The Lea Act of 1948 authorized acquisition and development of fed- eral management areas for waterfowl and other wildlife in California. One objective was to develop waterfowl feeding areas on federal land that would lure ducks and geese from privately owned cropfields, and thus help to prevent crop damage. The other federal acts relating to wildlife have generally less relevance to agricultural lands. The easement aspects of the waterfowl production area program, which is centered in the north central states, is closely related to agri- cultural land use. Under this program easements are purchased in per- petuity, thus obtaining the owner's right to drain, burn, or fill small water or marsh areas, so that they may be preserved permanently for the benefit of waterfowl and other wildlife. By April 30, 1968, more than 590,000 privately owned acres of waterfowl habitat had been thus preserved. This program was a partial answer to the serious problem of destruction through drainage of the pothole type of habitat, which is extremely productive of waterfowl. The taxing authority of the federal government permitted passage by Congress of several highly important acts that have provided funds for various types of wildlife programs. In addition to the Migratory Bird
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230 Land Use and Wildlife Resources Hunting Stamp Act, there have been two important federal aid acts: The Pittman-Robertson Act of 1937, which makes funds available to the states for wildlife restoration, and the Dingell-Johnson Act of 1950, which provides cost sharing in sport fish restoration and management projects. Under these acts, excise taxes on guns, ammunition, and fish- ing tackle are allocated to the state game and fish departments and they must be matched in part by the states. The substance of all of these fed- eral acts has been compiled by Magnuson (1 965b). The wide variety of fish and wildlife projects carried out in large part through federal aid includes many that relate to agricultural lands in the United States. For example, considerable research on the produc- tion of fish in ponds has been conducted under the Dingell-Johnson program. Pittman-Robertson funds have supported management work, as well as research, in the general area of increasing waterfowl and up- land wildlife production through habitat improvement. Some of the states, with federal assistance, have developed large-scale habitat im- provement programs that include privately owned agricultural lands. The Wildlife Management Institute and Sport Fishing Institute jointly publish an annual report, '~Federal Aid in Fish and Wildlife Restora- tion," which describes this work. Rutherford ~ l 949, 1 953) discussed, in some detail, the Pittman-Robertson program from its inception. The federal government owns approximately one third of the total area of the United States, and it has the same legal right as any land- owner to protect its property. Under this general authority, in the 1920's and 1930's the government declared it necessary to remove large numbers of deer to protect the vegetation in certain areas. Well-known examples of these areas were the Kaibab National Forest in Arizona and the Pisgah National Forest in North Carolina. More recently, in Yellowstone and some of the other national parks, overpopulations of elk or deer have resulted in damage to the range. Hunting is prohibited in most national parks and some national monu- ments. In these cases, although state and federal officials agreed that drastic reductions in big game populations were needed, the methods adopted have often given rise to controversy. To keep within the poli- cies and regulations prohibiting hunting, the National Park Service has removed as many animals as possible by live-trapping and transplanting, and then has resorted to direct killing by its own employees. Some states would prefer public hunting under state jurisdiction, but this is contrary to the national park concept, in recognition of which juris- diction was ceded by the states to the federal government in most of the national parks at the time they were established.
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Legislation and Administration 231 Some state control over resident (nonmigratory) game on federally owned lands has been contested by several federal agencies. In the past such conflicts have been settled in favor of the states, although the states often cede their authority to the government where to do so is obviously in the public interest, as in the case of national parks. Regu- lations of the U.S. Department of Agriculture promulgated in 1941 (known as regulations W-1 and W-2) are examples of the voluntary ar- rangements established for cooperating with the states in wildlife man- agement. Under these regulations the Forest Service in effect pledges itself to exhaust all avenues of cooperation before calling upon federal authority in conflict with that of the states. Several disputes between the states and the U.S. Department of the Interior may have been precipitated by the opinion of that Depart- ment's Solicitor in 1964. The following quotations from the Solicitor's opinion are among those that particularly disturbed the states, and their organization, the International Association of Game, Fish, and Conservation Commissioners. Declared the Solicitor: . . . it is apparent that the United States, constitutionally empowered as it is, may gain a proprietary interest in land within a state and, in the exercise of this pro- prietary interest, has constitutional power to enact laws and regulations controlling and protecting that land, including the persons, inanimate articles of value, and resident species of wildlife situated on such land, and that this authority is superior to that of a state. The opinion concluded: The regulation of the wildlife populations on federally owned land is an appro- priate and necessary function of the Federal Government when the regulations are designed to protect and conserve the wildlife as well as the land. Following this opinion there were several years of active dispute be- tween the states and the Department of the Interior over the jurisdic- tional question. Then on June 17, 1968, in an action similar to that of the Secretary of Agriculture in 1941 in promulgating regulations W-l and W-2, the Secretary of the Interior issued a policy statement with respect to fish and resident wildlife providing: A. In all areas administered by the Secretary of the Interior through the Na- tional Park Service, the Bureau of Sport Fisheries and Wildlife, the Bureau of Land Management, and the Bureau of Reclamation, except the National Parks, the National Monuments, and historic areas of the National Park System, the Secretary shall- 1. Provide that public hunting of resident wildlife and fishing shall be per
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232 Land Use and Wildlife Resources misted within statutory limitations in a manner that is compatible with, and not conflict with, the primary objectives as declared by the Congress for which such areas are reserved or acquired; 2. Provide that public hunting, fishing, and possession of fish and resident wildlife shall be in accordance with applicable state laws and regulations, unless the Secretary finds, after consultation with appropriate state fish and game depart- ments, that he must close such areas to such hunting and fishing or restrict public access thereto for such purposes; 3. Provide that a state license or permit, as provided by state law, shall be required for public hunting, fishing, and possession of fish and resident wildlife on such areas; 4. Provide for consultation with the appropriate state fish and game depart- ment in the development of cooperative management plans for limiting over- abundant or harmful populations of fish and resident wildlife thereon, including the disposition of the carcasses thereof, and, except in emergency situations, secure the State's concurrence in such plans; and 5. Provide for consultation with the appropriate state fish and game depart- ment in carrying out research programs involving the taking of fish and resident wildlife, including the disposition of the carcasses thereof, and secure the State's concurrence in such programs. B. In the case of the National Parks, National Monuments, and historic areas of the National Park System, the Secretary shall- 1. Provide, where public fishing is permitted, that such fishing shall be carried out in accordance with applicable state laws and regulations, unless exclusive leg~s- lative jurisdiction has been ceded for such area, and a State license or permit shall be required for such fishing, unless otherwise provided by law; 2. Prohibit public hunting; and 3. Provide for consultation with the appropriate state fish and game depart- ments in carrying out programs of control of overabundant or otherwise harmful populations of fish and resident wildlife or research programs involving the taking of such fish and resident wildlife, including the disposition of carcasses therefrom. In any case where there is a disagreement, such disagreement shall be referred to the Secretary of the Interior who shall provide for a thorough discussion of the problem with representatives of the state fish and game department and the Na- tional Park Service for the purpose of resolving the disagreement. Although this policy statement appears to be cooperative and con- ciliatory in its tone and intent, it has not fully satisfied the Interna- tional Association of Game, Fish, and Conservation Commissioners. The Association, in a resolution adopted September 13, 1968, at its annual convention, commended the Secretary of the Interior ". . . for attempting to resolve this dispute. . ." but ". . . urges the Congress to enact legislation reaffirming the historic jurisdiction of the states over
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Legislation and Administration fish and resident wildlife in order to accomplish a firm and complete resolution of this dispute...." 233 A detailed analysis of state and federal jurisdiction over fish and wildlife, including the Solicitor's opinion quoted in full, can be found in a report by Swanson et al. ( 1 969: 1 1-931. The legislation dealing with fish and wildlife is far too complex to review thoroughly here, as evi- denced by the fact that a compilation of the federal laws alone fills a volume of 472 pages (Magnuson, 1 965b), and that the fish and game laws of individual states commonly require 200 pages or more. STATE CONTROL OF GAME AND FISH HARVEST In many states the legislature has delegated to an executive or to the game and fish commission the authority to control hunting and fishing and associated activities through regulations having the effect of law. In any event, laws or regulations tend to be voluminous and complex, designed to serve many purposes. Most important are those to protect fish and wildlife resources, to provide the private landowner with pro- tection, to provide an orderly harvest, to distribute hunting and fishing opportunity as widely as possible, and to produce the income needed for operating the wildlife department. Laws and regulations are very important management tools. There are, however, other recognized purposes served by state wild- life laws and regulations. Some are designed to facilitate enforcement, such as those requiring the use of tags on various legally taken game and fish. Others designate fish and wildlife as recreational rather than com- mercial resources, including many that prohibit the sale of game, alive or dead. Still others are intended to promote gun safety; these may re- quire training programs in gun handling, particularly by the young license-buyer, or they may cancel the license of any who have had gun accidents while hunting. One group of laws or regulations simply discriminates between dif- ferent segments of the public. Common among these are the regulations that charge nonresidents a higher license fee than residents, and those that grant privileges to certain groups. Many states, for example, permit elderly persons to fish without a license, and many permit landowners to hunt or fish on their own property without a license A few grant nonresident members of the military services, or college students, the privilege of purchasing a resident license instead of the more expensive out-of-state permit.
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234 Land Use and Wildlife Resources Laws designed to protect the fish and wildlife resource are among the most important. Examples include those designating completely closed seasons, prohibitions against hunting and fishing during the breeding period, and establishing certain types of refuges. Of particular importance to agriculturists are regulations designed to protect them against hunters and fishermen who may abuse the privi- lege of being a guest on another person's land. Some of these merit more detailed discussion, but the most significant ones, included in the game and fish laws or regulations of many states, embody provisions for posting lands against all trespass if the landowner prefers; for re- quiring permission of the landowner to hunt; for providing "safety zones" around occupied residential and farm buildings; for limiting the owner's liability in case of accident on his property. Still other laws permit the landowner to safeguard his property from damage by pro- tected wildlife or provide for reimbursement of the landowner for crop damage. Among the regulations designed to distribute hunting and fishing opportunities as widely as possible are those that establish bag limits and season limits or that limit the types of hunting and fishing by placing emphasis on recreation rather than on the amount of meat to be taken. In this category would be the prohibition against live decoys and baiting, and some of the limitations upon firearms. Legislative delegation of authority over game and fish regulations to the state administrative agency is in general an effective form of man- agement. It provides flexibility whereby changes can be made from year to year to meet new conditions or as need arises. The extent of such authority varies from the situation in Missouri, where it is vested in the Conservation Commission by the state constitution, to the situ- ation, at the opposite extreme, wherein year-to-year regulations are originated by a committee and passed by the legislature. The practice of "legislative management," which deliberately with- holds from the commission discretionary powers to make regulations, is most likely to be invoked where measures favored by state technical personnel are not favored by vocal segments of the general public. Thus, appeals are made to representatives in the legislature, who are more likely to be swayed by public sentiment than by the findings and opinions of state wildlife biologists. Under these circumstances bounties, game farms, and fish hatcheries continued to absorb a disproportionate share of state fish and game budgets long after scientific research had shown good reason for re- ducing or eliminating them. Handling game regulations through politi
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Legislation and Administration 235 cat and legislative channels has had its most important land-use effect in some northern and western states by keeping the controversial buck law in force and thus preventing the adequate harvest of deer herds- a situation that still exists in some states. Overpopulation of deer is likely to occur through the extensive range improvement of large tim- ber cuttings or through fires, and by the elimination of predation as an important mortality factor. In the absence of a heavy hunting harvest, which can be accomplished only by taking both sexes, herds multiply exponentially and quickly damage their ranges. Experience has shown that, after a developmental phase featuring "legislative management," range deterioration, and at least local decline in numbers of deer, public understanding may begin to catch up. Par- tial authority over regulations is then granted to administrators, as po- litical demands slack off and informed groups of sportsmen give support to a scientifically guided program. Eventually, experience convincingly demonstrates to a controlling majority of the public and legislators that the technical agency can be trusted to handle this technical matter. In decades past, developments of this kind have produced manage- ment difficulties and state-federal disagreements, especially on national forests. However, the controversies tend to localize and subside as in- formation spreads and trained people take over higher administrative . . positions. PUBLIC ACCESS TO PRIVATE LANDS AND WATERS Cultivated lands are potentially the most productive of wildlife as well as of field crops, and a major proportion of the game in the United States is taken from them. The most popular species include the pheas- ant, quail, rabbits, squirrels, doves, and to some extent waterfowl and even deer. In much of the United States a tradition of free public hunting on private lands is recognized by both landowner and hunter. Customs vary in different parts of the country, but the farmer is often the un- willing host to hunters who enter his land as though it were their right without the formality of asking permission. In a remarkably high pro- portion of cases this traditional relationship is accepted philosophically by the landowner. With increasing numbers of urban hunters, there has been a growing tendency to abuse the farmer's hospitality. State fish and game departments are appropriately concerned and invoke what- ever means they can to improve landowner-sportsman relations.
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236 Land Use and Wildlife Resources Some of this effort, unfortunately, is a kind of holding action de- signed to maintain a relationship that is not actually appropriate under modern conditions. Today's farmer is a businessman in a competitive, highly capitalized, and mechanized industry, which is much more spe- cialized than it was 50 years ago. At the turn of the century a typical farm included a flock of poultry, a herd of dairy cows, an orchard, some acres of feed grain, some swine, and a garden to produce vege- tables for home consumption. But the general farm has largely given way to specialized monoculture, which produces much less wildlife. These changes in farming conditions and those associated with an in- creasing urban population, have been unfavorable to both ecological and social relationships for the sportsman seeking recreation on private land. It is clear, however, that with appropriate encouragement, public recreation on private farms can continue at an important level. Teague ( 1966) has brought this out forcefully in an analysis of the conflicts and the mutuality of interests. Trespass Laws and Enforcement Although the states legally hold wildlife in trust for the people, the landowner has the legal right to prevent hunters and fishermen from entering his land. The sportsman's license to take game or fish does not give him access to private property without permission. The owner may, in fact, keep others out and use the land for his own exclusive hunting arid fishing. Since these outdoor sports are the most common reasons for an individual to seek access to private land, the right of the landowner to prevent it is specifically included in the game and fish laws of most states. States usually put the responsibility for restricting trespass squarely on the landowner. Arizona, Connecticut, New Mexico, Pennsylvania, New York, and Washington are among the states that require the land- owner to notify hunters and fishermen either by posting signs or by word-of-mouth warning. In another group of states, represented by Colorado, Delaware, Texas, and Wisconsin, the sportsman is required by law to obtain permission from the landowner to enter his land, and in some, notably Michigan, Nevada, and West Virginia, this permission must be in writing. In actual practice, laws requiring landowner permis- sion for entry are often ignored. With an increasing number of holdings under absentee ownership it is becoming more difficult for hunters or fishermen to secure the required permission
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Legislation and Administration 245 five measures. Many of the species in this category are predatory mam- mals and birds, including the timber wolf, red wolf, kit fox, black- footed ferret, peregrine falcon, and southern bald eagle. The attention focused on these predators and the need for their protection promises to be highly beneficial. Without adequate knowledge of a species' population and ecology, measures to protect it cannot be realistic and effective. Hawks and owls provide a particularly good example of groups to- ward which public attitude, and consequently legislation, has changed over the years. General bird protection laws were widely adopted be- ginning about 1900 as a result of efforts by the Audubon Society to promote the "Model Audubon Law." This statement classified hawks and owls as generally beneficial (e.g., the broad-winged hawk), harmful (peregrine falcon and Cooper's hawk), or neutral (the marsh hawk). Laws passed in those days generally recognized these categories, pro- viding token protection for the beneficial hawks and none for the harmful. According to Chrest (1964), in 1899 only five states offered legal protection of any kind to eagles, hawks, and owls. This number has now increased to 46 states, but the degree of protection varies widely. The inadequacy of state protection of birds of prey was recognized early enough so that in 1940 Congress passed the original Bald Eagle Protection Act because the bird had been designated by the Continen- tal Congress in 1782 as our national symbol, and because "the bald eagle is now threatened with extinction." Soon after enactment of this act, an important weakness was recognized-namely, that a bald eagle in immature plumage is so easily mistaken for the golden eagle that many were shot by poorly informed persons in the belief, or at least with the rationalization, that they were shooting unprotected golden eagles. In 1962, therefore, the Bald Eagle Act was amended to extend legal protection also to the golden eagle, which was recognized in the enacting clause as having "declined at such an alarming rate that it is now threatened with extinction" and that it "should be preserved because of its value to agriculture in the control of rodents" and "because the bald eagle is often killed by persons mis- taking it for the golden eagle." Except for this act, birds of prey are not protected by federal law, because such species were not included in either the 1916 Migratory Bird Treaty with Canada or the 1937 treaty with Mexico. These birds, as well as certain other groups, were omitted from the treaties because attempts to include them might have delayed or prevented approval by
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246 Land Use and Wildlife Resources Congress, and thus jeopardized the protection of less controversial spe- cies. Since many of the hawks and some of the owls are clearly migra- tory, it would have been legally possible to gain protection for them in this manner, but emphasis in the treaty with Canada was to protect mi- gratory game birds, as "a source of food" and migratory insectivorous birds that destroy "insects which are injurious to forest and forage plants on the public domain, as well as to agricultural crops." The justi- fication for the later treaty with Mexico was "to employ adequate mea- sures which will permit a rational utilization of migratory birds for the purpose of sport as well as for food, commerce and industry." Thus the birds of prey, so widely recognized now as being particularly valuable and interesting components of our fauna and in need of protection, were completely neglected in federal law. Whether the legal protection of migratory birds is under federal law or state law, actual enforcement is primarily by state "conservation officers" or "game protectors" since federal "game management agents" are so few. Without the close cooperation of state officials, federal wild- life laws cannot be enforced effectively. Since the states have full legal jurisdiction over all other species of hawks and owls, it is gratifying that their laws have increasingly pro- vided legal protection. By 1 965, according to Clement ~ 1 965), 1 9 states gave legal protection to all hawks and owls, and 26 others protected some species. Only five states offered no protection to the birds of prey. Unfortunately, enforcement of this protection usually is inade- quate, but the mere fact that protection exists in the law has certainly reduced the indiscriminate shooting of hawks and owls, which was so common only a few years ago. Species of hawks that appear to be in greatest danger of extirpation in parts of their range are suffering more from reduced reproductive success than from shooting or other direct losses (Sprunt, 19631. The osprey, peregrine falcon, bald eagle, and marsh hawk have declined alarmingly in the eastern United States (and in portions of western Europe) in the past decade, and it has become clear that the immediate cause is lack of successful reproduction. It is suspected that the ulti- mate cause is related to the widespread use of persistent pesticides of the chlorinated hydrocarbon group and their effect upon the calcium metabolism of the birds, and considerable research is in progress in the United States and the United Kingdom to determine to what extent this is true. (See Chapter 6 for a discussion of the effects of persistent pesticides in the environment, and for an analysis also of legislation and regulations relating to these materials.)
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Legislation and Administration Legal I m pedi meets to B lackbird Control 247 The depredations of blackbirds upon corn and other crops have in- creased in recent years to such an extent that the damage is considered "severe" in 17 states. A summary of the 1967 North American Confer- ence on Blackbird Depredation in Agriculture (Anon., 1967) brings out many of the problems associated with control of these depredations, and state law is designated as one of the hindrances. The director of the Ohio Department of Agriculture pointed out that ". . . in Ohio, as in most other states, blackbirds may be killed only when they are dam- aging or about to damage a crop-except Sunday when they are protected." As more effective control methods become available it is possible that bird protection laws will have to be so modified as to permit these methods to be used. FUNDING OF WILDLIFE ADMINISTRATION In most states the income that meets the costs of managing fish and wildlife resources comes mainly from sales of hunting and fishing li- censes. In addition, the states receive federal aid under the Pittman- Robertson Act of 1937 for wildlife restoration and the Dingell-Johnson Act of 1950 for sport fishery restoration and management. In some states the fines from convicted violators of the fish and game laws also are used to support the fish and game department. The tradition of providing financial support for administering the fish and wildlife resource entirely from hunting and fishing licenses is well established. It was a provision of the federal aid acts that, to qual- ify for benefits, a state must formally earmark hunting and fishing li- cense income for the use of its fish and game administration. This earmarking of funds under the principle that "the user pays" has been applied to some extent on the federal level also, under the Mi- gratory Bird Hunting Stamp Act of 1934 and the Land and Water Con- servation Fund Act of 1965. The former act was intended to raise funds for land acquisition and development and maintenance of a system of national waterfowl refuges, and the latter applies to outdoor recreation broadly, with primary objectives of encouraging longrange planning for outdoor recreation, and land and water acquisition for the same purpose. It is now being increasingly recognized, at state levels as well as fed
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248 Land Use and Wildlife Resources eral, that the social values of fish and wildlife are so great and so diverse that it is neither appropriate nor adequate to finance the management of this resource entirely from license holders, who comprise a small mi- nority of the public. A few states have recognized this. and are now supplementing hunting and fishing license income with general tax revenue in order to provide more adequate support for conservation programs. The California Fish and Wildlife Plan of 1966 estimates that between 1965 and 1980 the cost of maintaining today's program in the Department of Fish and Game will total approximately $8.2 million, while new license buyers will provide only $4.2 million. It is recom- mended that current sources of income be augmented with general fund revenues to supply the deficit. In New York State this same situation was recognized in 1968 when the legislature provided from general rev- enue approximately one third of the budget of the Fish and Game Division. The conclusion seems clear that earmarked funds, particularly from hunting and fishing licenses, will not be sufficient in the future to meet the costs of managing the fish and wildlife resource for the people at large. WATER LAW IN RELATION TO FISH AND WILDLIFE Water laws vary considerably from state to state and are exceedingly important in the management of fish and wildlife. The legal status of surface water is drastically different between the 17 western states (Dakotas to Texas and westward), where the doctrine of prior appro- priation applies, and the eastern states, which employ variations of the riparian doctrine. In its simplest form, the riparian doctrine permits any use by riparian landowners that returns the water to its streambed "undiminished in quantity or quality". This may be possible for certain nonconsumptive uses, such as waterwheels and fisheries. The opposite extreme is repre- sented in western states, where frequently the entire flow of a stream is appropriated and used, leaving nothing whatever for fish habitat or rec- reational activities. Under this doctrine it is not unusual for a river to be completely "turned off" for a period of weeks or months. Three features of the appropriation doctrine are in sharp conflict with fish and wildlife interests: ( 1 ) Water is legally appropriated to be diverted from its natural course; (2) most states allow the appropriation
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Legislation and Administration 249 of all the water from a stream; and (3) fish and wildlife are not ordinar- ily recognized as a "beneficial use" or, if so, it is so subordinate to such uses as irrigation that the legal recognition is meaningless. The subject of water law has been under scrutiny in all the contigu- ous 48 states because of conflicting demands for water and its increasing importance. Many changes have been made and are being considered. Among numerous publications on water law, several have been found particularly relevant, and they are the basis for this review. Water law in general or in relation to agricultural use has been treated by Williams (1950), Busby (1955), the University of Michigan (1955), Black (1960), Harding ( 1 960), and Johnson ( 1965~. The specific area of water law in the western states in relation to fish and wildlife has been reviewed by Denman (1957), Gordon (1958), Voigt (1958), Binford (1959), Lynch ( 1959), and Whitney ( 19641. In 31 eastern states, where water is more plentiful, its relationships generally are outside the scope of this treatment. The questions of wa- ter pollution and its legal control, and of accelerated eutrophication of waters, have been treated in other reviews. The 17 western states, there- fore, deserve particular attention here. These western states have water laws based upon the appropriative doctrine, "first in time, first in right." Nine of the states included a basic water law in their constitutions, beginning with Texas in 1845 and ending with New Mexico in 1912. The other eight have statutory water law, beginning with Oregon in 1859. Though the doctrine has been recently slightly modified in the coastal states of Washington, Oregon, and California, the basic doctrine is inimical to fish and wildlife because it assumes that appropriated wa- ter must be diverted from its natural bed, and there is no provision re- quiring a minimum flow. Fish and wildlife thus have no legal right to water. In dry years the water in a stream may be far over-appropriated, so that the owners of first water rights may use the entire flow for irri- gation, municipal, or industrial purposes, whether or not it is used ef- ficiently, and later appropriators (and fish and wildlife interests) have none. It is a provision of the doctrine that appropriative rights go with the land, not the landowner, but even this feature cannot be exploited in the interest of fish and wildlife, as illustrated by the experience of the Arizona Department of Game and Fish. The Department purchased submarginal lands for the purpose of securing the water rights that went with them, but the water was to be left in its natural course as habitat
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250 Land Use and Wildlife Resources for fish and game. The courts, however, ruled that since there was no active diversion of the water, the appropriative rights were invalid (Binford, 19591. Binford also cites cases in Montana in which it was proposed to di- vert water from the streambed to fish-rearing ponds. This too was ruled invalid by the court because, in the conflict between irrigation and fish, the fish have lower priority. In several states efforts have been made to pass legislation that would classify fish and wildlife uses as beneficial, but these were opposed successfully by agricultural interests. Increasing demands for recreation have resulted in some states recoin nizing the recreational values of water, and amendments to the original appropriative doctrine have been passed by the legislatures of the three west coast states. Each of these now has laws that provide for minimum flows in streams for preservation of fish and wildlife. Denman (1957) describes how the Oregon Game Commission, in testing the recent State Water Resources Act, requested a minimum flow of 200 cfs in the Deschutes River below the Wickiup Dam. Although granted only 20 cfs, the Commission established the important precedent of a minimum stream flow for fish and game in a western state. In a 1957 amendment, California water law classified fish and game as beneficial users, on an equal basis with other users, and Gordon (1958) describes numerous water rights held by the Department of Fish and Game for fish hatcheries and rearing ponds, and for waterfowl man- agement areas. Missouri's water law requires State Conservation Department review and approval before any obstruction is built in a watercourse. If passage of fish is blocked, the department may require that either a hatchery or a fish ladder be constructed. This law has also been used as a basis for negotiating a minimum waterflow over or through a dam. Washington's water law also places fish and wildlife on an equal basis with other beneficial users, and provides further that streambeds may not be disturbed by construction projects without consultation with, and consent of, the director of fisheries and the director of game (Binford, 19591. Pertinent sections of the amended water law of Wash- ington are worth quoting since they are in such sharp contrast with most other western states: 75.20.050. It is hereby declared to be the policy of this state that a flow of water sufficient to support game fish and food fish populations be maintained at all times in streams of this state. 75.20.060. Every dam or other obstruction across or in any stream shall be pro- ~rided with a durable and efficient fishway . . . as the director may approve. . . .
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Legislation and Administration 251 75.20.100. In the event that any person or government agency desires to con- struct any form of hydraulic project that will lower, divert, obstruct or change the natural flow or bed of any river . . ., such person or government agency shall sub- mit . . . plans and specifications of the proposed construction . . . and shall secure the written approval of director of fisheries and director of game.... Particularly important is Montana's Stream Preservation Act of 1964, described by Whitney (19641. Its provisions are similar to the last sec- tion of Washington's water law in that it protects watercourses from damage by such construction projects as highways. The act requires that the Montana Department of Game and Fish be notified 60 days prior to the construction of any project that might damage a watercourse. The Department thus has the opportunity to recommend alternatives to prevent or mitigate the damage. The act has reportedly been highly successful in protecting fishery resources, but a serious weakness is that it ~nnlies oniv to other state agencies, not to federal or private con _¢ ~ ~ _ ~ O struction. It is clear that among the very important legislative problems in the fish and wildlife field are those relating to water, and to the preserva- tion of streams from unnecessary damage. TH E TAX D EDUCTI ON I N F LU ENCE I N R ESOU RCE USE In major decisions affecting resource management, the people act through their government by means of available political machinery. The members of Congress give support and direction to a cause as they are influenced by its proponents. They may withhold such sanction when opponent forces state their case effectively. It is inherent in our legislative process that the will of the public usually is served and that it is made known through hearings and other representations of citizens. An acknowledged feature of this system is the right of entrepreneurs in every economic field to promote legislation favorable to their busi- ness interests. Such activities are an allowable business expense under provisions of the Internal Revenue Code. These regulations apply to the users and developers of natural resources and have long governed our public management of land and water. Somewhat different concepts apply to the activities of citizens who attempt to affect resource decisions for reasons other than profit (see Borod, 19681. When they incorporate in conservation organizations for purposes they conceive to be in the public interest, their contributions to the organization (if eligible) are tax deductible. However, the Inter
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252 Land Use and Wildlife Resources nal Revenue Code prohibits the use of any substantial part of that in- come for influencing legislation. A case of this kind came to national attention when The Sierra Club lost its tax-deductible status in 1966 for advertising in leading newspapers as part of its campaign to prevent the construction of dams in the Grand Canyon. In the year following, the club reported the loss of $125,000 in gifts (San Francisco Chronicle March 14, 19689. In discussing this situation, Patterson (1967) pointed out that the in- terests who stand to gain by certain decisions commonly have ample funds to pursue their cause, while those speaking for the general public do not. He noted that "The final irony is that the law protects itself; they cannot fight to have it changed." Especially among the larger, more responsible, conservation organi- zations of the nation, there is a growing feeling that they should have similar financial privileges in working for or against legislation as their counterparts in labor and industry have. GROWING EMPHASIS ON HABITAT Much of the legislation discussed here has had the effect of putting a restraint on the users of fish and wildlife, and this effect will always be important. However, there have been many state laws and acts of Con- gress dealing with problems of environment essential to wildlife. The aim may be habitat presentation or rehabilitation, or in some cases the development of entirely new habitats. Unfortunately, destructive forces continue to increase also, as a consequence of population growth, tech- nological developments, and social demands, so this preoccupation with habitat is well justified. Some of the significant federal acts have been mentioned in other connections. Thus, the Migratory Bird Conservation Act of 1929 is legal authority for the system of National Wildlife Refuges, and the Federal Aid Acts (Pit/man-Robertson and Dingell-Johnson) of 1937 and 1950 provided that the States might use funds from these sources for the de- velopment of habitat. Public Law 83-566, the Small Watersheds Act, though enacted primarily for flood control purposes, included provi- sions for creation of fish and wildlife habitat. The Federal Water Quality Act of 1965, as amended, will have exceedingly important beneficial ef- fects upon water quality for fish in particular, because the standards it imposes are In so many cases higher than those that the states were employing. The Agricultural Conservation Program of the U.S. Depart- ment of Agriculture, effective in 1936, has encouraged wildlife habitat
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Legislation and Administration 253 developments on farms and ranches through federal cost sharing and has resulted in the building of many thousands of farm and ranch ponds. The Land and Water Conservation Fund Act of 1965 provides still another source of funds that are being used in part for creation of new ponds and ladles for recreational use. Others are less direct, but still constructive, in their influence upon habitat restoration, preserva- tion, or development, but in the aggregate Hey demonstrate an increas- ~ng ecologic awareness on the part of the American public. THE FUTURE The technologies of agriculture and of fish and wildlife management have developed so rapidly in recent decades that in most situations they are far ahead of what we can apply. Legislation and administration have lagged far behind, so that there are many examples of unresolved con- flicts of interest, duplications of effort, lack of coordination or cook oration, and overlapping jurisdiction involving fisheries, wildlife, agr~- culture, and other land uses. The challenge of the future will be to develop legislation and patterns of administration that will make it possible to cooperate and focus a coordinated effort, giving full con- sideration to the many interests that are involved. A rare opportunity to improve legislation is available to the Public Land Law Review Commission and the Congress, for the Commission was required to submit its recommendations by June 30, 1970. The recommendations were developed from a series of some 30 compre- hensive studies conducted during the past 5 years. If and when adopted by the Congress and the public land managing agencies, these recom- mendations can have a tremendous influence on future conservation programs directly affecting approximately a third of the land area of the United States. REFERENCES Allen, D. L. 1962. Our wildlife legacy. Funk & Wag,nalls Co. 422 p. Anonymous. 1967. Blackbird depredation in agriculture. Ag,r. Sci. Rev., Second Quart., 15-22. Berryman, J. C. 1961. The responsibility of state agencies in managing hunting on private lands. 26th N. Amer. Wildl. Conf. Trans. p. 285-292. Binford, L. C. 1959. Western water law and policy as it relates to fish and wildlife resources. Western Ass. State Fish & Game Comm., 39th Annul Conf. Proc. p.41-55.
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254 Land Use and Wildlife Resources Black, P. E. 1960. Colorado water law. Coop. Watershed Manage. Unit., For. WM 90. Borod, R. S. 1968. Tax exemption: lobbying for conservation. New Republic 159(23): 14-16. Boyce, A. T. 1967. Results of the Cropland Adjustment Program's first year in Michigan. 32nd N. Amer. Wildl. & Natur. Resour. Conf. p. 96-102. Busby, C. E. 1955. Regulations and economic expansion, p. 666-676. In Water. Yearbook of Agriculture. U.S. Department of Agriculture. U.S. Government Printing Office, Washington, D.C. Chrest, H. R. 1964. Review of literature of the bald eagle. Colorado State Univer- sity Library. 121 p. (Unpub. Ms.) Clement, R. C. 1965. Last call for birds of prey. Audubon Mag. 67~1~:37. Crews, J. F., and R. Bird. 1963. Reducing liability risks in farm recreation enter- prises. Univ. Missouri Agr. Exp. Sta. and USDA Res. Devel. Econ. Div. B-801. Denman, K. G. 1957. Water rights as related to fish and game. Western Ass. State Fish & Game Comm., 37th Ann. Conf. Proc. p. 134-138. Dimmick, R. W., and W. D. Klimstra. 1964. Controlled duck hunting in Illinois. J. Wildl. Manage. 28~4): 676-688. Galbreath, D. S. 1965. Hunting access programs summary. Washington Game Dep., Upland Game Bird Program. p. 24-29. Gearhart, D. 1957. "Frontiers" formed to help solve old hunter-owner feud. N.M. Wildl. 2(12) :7. Gilbert, D. L. 1965. Public relations in natural resources management. Burgess Publ. Co., Minneapolis. 180 p. Gordon, S. 1958. Water problems and California wildlife. Western Ass. State Game & Fish Comm., 38th Ann. Conf. Proc. p. 24-28. Harding, T. S. 1960. Water in California. N-P Publ., Palo Alto. 231 p. Hay, H. 1960. An evaluation of Colorado's access problems. 25th N. Amer. Wildl. Con f. p. 364-377. Hunter, G. N. 1957. The techniques used in Colorado to obtain hunter distribution. 22nd N. Amer. Wildl. Conf. Trans. p. 589-593. Hunter, W. A. 1953. Landowner-sportsman relations. Western Ass. State Game & Fish Comm., 33rd Ann. Conf. Proc. p. 265-269. Johnson, K. L. 1965. Analysis of state regulations of surface water development and use in Colorado. Colorado State University. Ph.D. thesis. Johnson, L. W. 1943. Hunter distribution: studies and methods. 8th N. Amer. Wildl. Conf. Trans. p. 392-407. Johnson, W. 1967. Operation respect. Colorado Outdoors 16~2~: 22-27. Kelsey, G. L. 1964. Liability risks for hunter-hosts. S.D. State Univ., Coop. Ext. Ser. FS-241. Kozicky, E. L. 1960. Access to private lands. Internat. Ass. Game, Fish & Conserv. Comm., 50th Conv. Proc. p. 18-23. Krausz, N. G. P., and L. G. Lemon. 1964. Laws and regulations concerning rec- reation in rural areas of Illinois. Univ. Illinois, Coll. Agr., C-889. Laun, H. C. 1963. It's time for mutiny on the bounties. Audubon Mag. 65~3): 146-149. Leedy, C. D. 1966. Liability protection for outdoor recreation enterprises. N.M. State Univ., Coop. Ext. Serv. Circ. 385.
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Legislation and Administration 255 Leopold, A. 1930. The American game policy in a nutshell. 17th N. Amer. Game Conf. Trans. p. 281-283. Leopold, A. 1933. Game management. Charles Scritner's Sons, New York. 481 p. Leopold, A. 1940. History of the Riley game cooperative, 1931-39. J. Wildl. Manage. 4(3): 291-301. Lynch, R. G. 1959. Our growing water problems. National Wildlife Federation, Washington, D.C. 60 p. Magnuson, W. G. 1965a. Treaties and other international agreements containing provisions on commercial fisheries, marine resources, sport fisheries, and wild- life to which the United States is party. 89th Cong., 1st Sess., U.S. Senate, Committee on Commerce. U.S. Government Printing Office, Washington, D.C. 410 p. Magnuson, W. G. 1965b. Compilation of federal laws relating to the conservation and development of our nation's fish and wildlife resources. 89th Cong., 1st Sess., U.S. Senate, Committee on Commerce. U.S.'Government Printing Office, Washington, D.C. 472 p. Oregon State Game Commission. 1967. Cougar Bull., Nov.-Dec. 8 p. Patterson, R. W. 1967. The art of the impossible. Amer. Acad. Arts and Sci. Proc. 94(4): 102~1033. Rutherford, R. 1949. 10 years of Pittman-Robertson wildlife restoration. U.S. Fish and Wildlife Service. 14 p. Rutherford, R. 1953. 5 years of Pittman-Robertson wildlife restoration, 1949-53. U.S. Fish and Wildlife Service. 14 p. Scott, W. E. 1948. Methods of controlled public hunting in the United States and Canada. J. Wildl. Manage. 12~3~: 236-240. Sigler, W. F. 1956. Wildlife law enforcement. Wm. Brown Publ., Dubuque, Iowa. Sprunt, A., Jr. 1963. Bald eagles aren't producing enough young. Audubon Mag. 65(1):32-35. Stuewer, F. W. 1953. How good is the Williamston plan? Mich. Conserv. 22(5): 23-26. Swanson, G. A., J. T. Shields, W. H. Olson, et al. 1969. Fish and wildlife resources on the public lands. A report prepared for the Public Land Law Review Com- mission by Colorado State University; available from Clearinghouse for Federal Scientific and Technical Information, U.S. Department of Commerce, Spring- field, Va. Teague, R. 1966. Recreation potential on farmlands. Internat. Ass. Game, Fish, & Conserv. Comm., 56th Conv. Proc. p. 128-133. University of Michigan. 1955. Water resources and the law. U. Mich. Law Sch., Ann Arbor. 614 p. U.S. Department of Agriculture. 1965. Cropland Adjustment Program for 1966 through 1969. Washington, D.C. 13 p. Voigt, W. 1958. Water policy problems, east and west. Western Ass. State Game & Fish Comm., 38th Ann. Conf. Proc. p. 5-23. Whitesell, D. 1952. Analysis of farmer-hunter relationships. 17th N. Amer. Wildl. Conf.Trans.p.533-539. Whitney, A. H. 1964. Montana's first year with a stream preservation act. Western Ass. State Game & Fish Comm., 44th Annul Conf. p. 229-231. Williams, M. B. 1950. Water law in the United States of America. United Nations Food & Agriculture Organization, Geneva. 161 p.
Representative terms from entire chapter: