Land Use and Wildlife Resources (1970) / Chapter Skim
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8 Legislation and Administration
8 Legislation and Administration
Pages 226-255
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From page 226... ...
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.
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From page 227... ...
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)
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From page 228... ...
The states now cooperate closely in the conservation of migratory birds, particularly 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.
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From page 229... ...
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 Migratory Bird Hunting Stamp Act of 1934 was intended to raise revenue for acquiring refuge lands.
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From page 230... ...
Some of the states, with federal assistance, have developed large-scale habitat improvement 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 Restoration," which describes this work.
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From page 231... ...
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 National 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 shall1.
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From page 232... ...
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 department in the development of cooperative management plans for limiting overabundant 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.
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From page 233... ...
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 protection, 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.
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From page 234... ...
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 reducing or eliminating them. Handling game regulations through politi
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From page 235... ...
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 pheasant, quail, rabbits, squirrels, doves, and to some extent waterfowl and even deer.
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From page 236... ...
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.
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From page 237... ...
Programs to Encourage Access The dilemma facing the landowner, the sportsman, and the state game and fish administrator is a difficult one. A large proportion of outdoorsmen cling to the American folkway of free and unregulated hunting, a tradition dating from pioneer times and to a considerable degree no longer appropriate.
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From page 238... ...
Teague noted that many waterfowl hunting clubs in California have long waiting lists, and that people are willing to pay up to $10,000 for a membership. While such duck clubs furnish hunting opportunity for a limited number of license holders, the wetlands habitat they control is recognized as important in providing essential environment for a portion of the North American waterfowl population.
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From page 239... ...
reported that 36,000 farmers in 48 states signed 5- to l~year cropland diversion contracts involving a million acres. In 35 states supplemental public access payment contracts were included for about one quarter of these lands.
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From page 240... ...
The Forest Service and Bureau of Land Management are especially concerned about this problem, and in some cases they have solved it by purchasing rights-of-way or easements permitting public access through private areas to the public lands or waters lying beyond. Many of the states have similar programs for purchasing and developing access through private lands.
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From page 241... ...
BIG GAME HUNTING REGULATIONS Game laws or regulations designed to accomplish an appropriate level of harvest have been developed, with many variations. Western states have pioneered in the use of effective big game hunting regulations, because public acceptance has generally been quicker there than in many of the eastern states.
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From page 242... ...
This is an effective device for directing hunting pressure where it should be, and gearing it to the population surplus. For the purpose of distributing big game hunting pressure, many states are divided into a large number of units.
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From page 243... ...
From the large number of different regulatory devices developed by the states for adjusting hunting pressure in specific areas, it is clear that no one arrangement is always satisfactory, and undoubtedly more variations will be developed in years to come. It is characteristic that American big game hunters prefer a minimum of regimentation and would oppose the tight restrictions frequently applied in European big game hunts.
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From page 244... ...
Unfortunately, the 1969 Minnesota legislature reinstated bounty payments, limited by administrative discretion. In 1967, Oregon, through its Game Commission, designated the mountain lion as a game species with a completely closed season, pending investigation of the possibility that the population was sufficient to permit restricted hunting (Oregon State Game Commission, 19679.
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From page 245... ...
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 mistaking 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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From page 246... ...
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 wildlife laws cannot be enforced effectively.
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From page 247... ...
It was a provision of the federal aid acts that, to qualify for benefits, a state must formally earmark hunting and fishing license 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 Migratory Bird Hunting Stamp Act of 1934 and the Land and Water Conservation Fund Act of 1965.
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From page 248... ...
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.
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From page 249... ...
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.
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From page 250... ...
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 management areas.
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From page 251... ...
Particularly important is Montana's Stream Preservation Act of 1964, described by Whitney (19641. Its provisions are similar to the last section of Washington's water law in that it protects watercourses from damage by such construction projects as highways.
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From page 252... ...
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)
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From page 253... ...
If and when adopted by the Congress and the public land managing agencies, these recommendations 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
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From page 254... ...
1960. Colorado water law.
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From page 255... ...
A report prepared for the Public Land Law Review Commission by Colorado State University; available from Clearinghouse for Federal Scientific and Technical Information, U.S. Department of Commerce, Springfield, Va.
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