Wildlife Law, Second Edition

A Primer

Eric T. Freyfogle, Dale D. Goble, Todd A. Wildermuth

• Publisher: Island Press
• Year: 2019
• ISBN:
  9781610919159
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Wildlife is an important and cherished element of our natural heritage in the United States. But state and federal laws governing the ways we interact with wildlife can be complex to interpret and apply. Ten years ago, Wildlife Law: A Primer was the first book to lucidly explain wildlife law for readers with little or no legal training who needed to understand its intricacies. Today, navigating this legal terrain is trickier than ever as habitat for wildlife shrinks, technology gives us new ways to seek out wildlife, and unwanted human-wildlife interactions occur more frequently, sometimes with alarming and tragic outcomes.This revised and expanded second edition retains key sections from the first edition, describing basic legal concepts while offering important updates that address recent legal topics. New chapters cover timely issues such as private wildlife reserves and game ranches, and the increased prominence of nuisance species as well as an expanded discussion of the Endangered Species Act, now more than 40 years old. Chapter sidebars showcase pertinent legal cases illustrating real-world application of the legal concepts covered in the main text.Accessibly written, this is an essential, groundbreaking reference for professors and students in natural resource and wildlife programs, land owners, and wildlife professionals.

1

The Basics

Wildlife law is the body of legal rules and processes that have to do with wild things—with the interactions people have with these things and with the interactions among people themselves that relate to the things. It is as simple and as wide-ranging as that. The term wild things is a vague one, just as the term wildlife is vague, but lawmakers have ways of taking vague terms and giving them greater precision, even when the precision is arbitrary. For the most part, the law considered in this book deals with animals. It does so because human disputes over wild things have largely dealt with animals. The law pays far less attention to plants, and when it does, it is usually just to domesticated and human-engineered ones. Among wild plants, only the rarest and weediest show up in the law. This divide reflects a fundamental difference in the law: plants are part of land (and thus belong to the landowner) whereas animals are not, a point we shall address. As for the many single-celled organisms that are neither plant nor animal, they also make few appearances in the law’s annals, save as minor characters in disputes about diseases and, more recently, intellectual property rights. All life depends on these single-celled creatures. The law, though, gives them scant attention, and so shall we.

The place to begin any study of law is with the basics of law itself—where it comes from, why it exists, what forms it takes, and how it changes. So accustomed are we to the idea and presence of law that we rarely take time to think about it. The law that we are talking about, of course, is human-created law. Some person or group, somewhere at some time, created the law and did so for particular reasons. Sometimes the reasons are unclear and the law can seem mysterious, but all law exists for a purpose. When we understand the law’s purposes, it becomes easier to understand the law itself. Many laws deal with problems that arise among people. Other laws help people accomplish tasks that would otherwise not be possible. Then there are the various laws that allocate power or authority within society and that prescribe how that power can be exercised. Each type of law appears in the pages that follow.

Levels of Government

One characteristic of law is that it is crafted by a variety of governments at multiple levels. The basic unit of governmental power in the United States is the state. The states, in essence, replaced the British king and Parliament at the time of the American Revolution. States possess that all-purpose governing power commonly known as the “police power”—the power to enact laws promoting the public health, safety, and welfare. Although limited by constitutions in what they may do and how they may do it, states are our governments of fullest sovereign authority. The federal government, in contrast, is a government of enumerated powers. That is, it possesses only those powers granted by the United States Constitution. Finally, there are the local governments, which derive their powers from a state. They typically possess only those powers expressly delegated to them, although the powers of “home-rule” jurisdictions can be broad. An action by local government that is not authorized by state law is, for that reason alone, legally invalid.

Before considering other governmental bodies that play lawmaking roles, it is worth noting that all levels of government participate in developing wildlife law. Most wildlife law emanates from the state. Although local governments also enact laws dealing with wildlife (ordinances, they are usually called), their power to do so is typically limited. Local laws commonly address matters of public health, safety, and land use, not the management and conservation of wildlife populations. Federal law is also limited when it comes to wildlife—due to the conscious choice of federal lawmakers—although the federal role has grown. Federal law typically deals with wildlife issues that transcend state boundaries. That can happen because the animals are migratory, because violators of laws themselves cross state boundaries, or because problems arise that states alone either cannot or will not address.

For the same reason that wildlife law at the federal level has been on the rise, wildlife law has also increased at the international level, by means of international treaties. Many of the problems addressed by international law deal either with migratory animals or with animals that inhabit the vast, unowned oceans. More recently, international law has been called on to help enforce wildlife laws that individual nations adopt. Many violations of national laws are motivated by the profits people can make selling wildlife in international markets. Realistically, it is difficult for individual nations to enforce their internal laws unless global wildlife markets are tightly controlled. This task can be addressed effectively only by international agreement. Also fueling international wildlife law are widely held ethical and aesthetic concerns about the plights of wild species worldwide. Many people feel strongly that humankind should protect all species, preferably in their native habitats. People in one country can express great interest in the status of wildlife in other lands. This interest can also prompt nations to enter into agreements protecting particular species.

Among the sources of US law are the many special government bodies that administer statutes and ordinances. Commonly called administrative or regulatory agencies, these bodies have varying degrees of legal independence. They also have varying powers to interpret, supplement, and implement the laws enacted by legislatures. Like local government bodies, administrative agencies possess only those powers expressly given them by a legislative body. Thus, when questioning the validity of a regulation or action by a state fish and game commission or the US Fish and Wildlife Service, the first place to look is the statute that created the agency and defined its powers. To use a typical example, the question often arises whether a state wildlife agency can designate a species such as the mourning dove a “game” species, thereby opening it up to hunting. As we shall see in chapter 7, legislatures in some states have empowered a state agency to make the decision. In other states, the legislature has retained the power, presumably because the issue is politically contentious. When a state legislature retains the power to make the decision, the state’s fish and game agency cannot change the rules. Administrative agencies, in short, are obligated to stay within the legal powers, or jurisdiction, given to them.

Administrative agencies are also obligated to comply with the procedures set up to guide their activities. Typically, the most effective way to overturn an administrative action is to show that the agency failed to follow the proper procedures. Even if the agency’s decision or ruling was within its jurisdiction—and, indeed, even if the ruling made good sense—it will be invalid if the agency skipped a required procedural step.

A final group of governments that needs mention are the Indian tribes, which hold sovereign powers over their territories and the wildlife within them. Many tribes also have rights to hunt and fish outside their reservations under treaties signed with the United States. Because Indian treaties have the same legal status as federal statutes, they take precedence over claims based on state laws, including the property rights of landowners. Many lands in which tribal members retain hunting and fishing rights are now the property of nontribal members. Whether or not these landowners realize it, tribal members can sometimes lawfully enter their lands to hunt and fish without their permission.

Forms of Law: Their Gaps and Overlaps

Having surveyed the types of governments that create law, it is useful next to consider the various forms that law can take. The most binding and inflexible form of law is a constitution, whether federal or state. Constitutions are approved directly by citizens, and only citizens can change them. Like it or not, legislatures are obligated to follow constitutional mandates.

Next in priority come statutes, which are formal, written laws enacted by a body that possesses legislative power. Congress holds the legislative power at the federal level. State legislatures or general assemblies (the names vary) hold this power at the state level. At local levels, legislative bodies promulgate ordinances. Many names are used to describe these “municipal corporations,” and, as noted, they can possess various legal powers. City councils and county boards typically have wide authority to promulgate ordinances to promote the public welfare. More limited legislative power is commonly vested in park districts, forest preserve districts, coastal or tidal protection entities, public health districts, highway districts, and countless similar legal entities. In each instance, an ordinance is valid only if the entity promulgating it held the legal power to do so and followed proper procedures.

The countless regulations and administrative rules promulgated by administrative agencies make up yet another form of law. Administrative regulations are usually more detailed than statutes. Indeed, many administrative bodies are created precisely because detailed rules are required and legislative bodies lack the time and expertise to write them.

The form of law that most people find hardest to understand is the “common law.” It is a type of state law, but unlike statutes or constitutions, it emerges directly from the accumulated decisions of state courts. This law originally was “common” in the sense that it applied throughout the realm of England, not just in a particular locale. Common law was the law applied by the courts of the kings and queens, as opposed to law that was peculiar to a given shire or privately owned manor. Over the centuries, England’s royal courts decided a large number of disputes, and their decisions gained precedential value. As lawyers and judges studied these many judicial decisions, they pieced them into rules of law. These rules were viewed as guides for future conduct. For centuries, courts were reluctant to admit that they were gradually writing new law as they handed down decisions. They liked to say instead that they were merely “finding” the law or were clarifying law that already existed. But by the nineteenth century, these subterfuges were largely discarded. Judges became more open about what they were doing and why. Increasingly, to distinguish it from other forms of law, the common law was called “judge-made” law.

The common law retains considerable importance even though legislatures can freely change it. Because state statutes take priority, the common law remains valid only as long as the legislature does not alter it, yet in the wildlife arena as in much of property law generally, many common law rules continue to govern disputes with only modest statutory alterations. The law of trespass, for instance, remains grounded in the common law, as do the rules governing liability for the harms caused by, or to, wild animals. When legislatures do decide to amend the common law, they often change it in small ways. They may replace the common law, for instance, only as it applies to a specific factual setting. When that happens, the general common law rule remains in effect, as modified by the statute. For example, a legislature might enact a statute that allows hunters to enter posted private land to retrieve wounded game while leaving in effect the common law rule of trespass that bars all entries onto private land without landowner consent.

These various levels and forms of law pose an obvious question: What law governs when different levels of government each provide a relevant legal rule and the rules differ? The usual answer, again, is that federal law overrides state law, just as state law, in turn, overrides local law. In other words, law from the higher level of government is usually supreme in that it preempts the lower-level law.

One practical consequence of this division of lawmaking authority is that we end up with wide variations in applicable laws. Laws vary among the fifty states and among local jurisdictions within states. Even casual observers know that states differ in the species they consider game and the specific limits they place on capture. But the differences among states can be far starker. Consider, as an example, the zoos that governments operate. Zoo animals occasionally injure visitors. What facts must a visitor prove to obtain monetary recovery for an animal-inflicted injury? The answer varies widely. Some states view the harboring of dangerous animals as an “ultrahazardous activity.” In those states, the zoo is almost automatically liable when a dangerous animal injures a visitor, regardless how careful its management has been. At the other end of the legal spectrum are states that grant zoos immunity from all liability, even for grossly negligent conduct. In such a state, an injured person would have no chance of recovery, no matter how careless the behavior of the zoo’s management. In between are states that allow injured visitors to recover upon a showing that the zoo has been negligent in some respect. The variation among states could hardly be larger.

CASE STUDY

Game Laws in Action

State v. Hogevoll, Court of Appeals of Oregon, 2008

196 P.3d 1008

Ben Hogevoll, an Oregon hunter, was found guilty of violating the Oregon one-elk bag limit for Coast bull elk. Hogevoll shot, killed, tagged, and gutted a five-point buck. While returning to his vehicle, he found (so he claimed) and took possession of an abandoned seven-point buck elk. At court, he argued that the state, to convict him, had to prove that he shot the second elk—something the state suspected but, in the absence of witnesses, could not demonstrate beyond a reasonable doubt. The court held that Hogevoll acted unlawfully simply by taking possession of the second elk; by doing so, he engaged in a “take” of the second elk, which was sufficient to violate the one-elk bag limit.

The Hogevoll ruling illustrates how game laws are often written broadly to facilitate game law enforcement. Hogevoll likely shot the second elk, although another hunter, acting unlawfully, could certainly have left it behind. When hunting occurs with no witnesses or with witnesses who might slant testimony to favor a hunting companion, prosecutors commonly cannot prove who shot an animal and when. Thus, regulations often impose penalties simply for possession as a way to restrain unlawful killings, even though a person punished might well have not killed unlawfully.

The court’s ruling also illustrates how various forms of law fit together. An Oregon statute banned unlawful takings of wildlife and defined “take” to include possession. A state agency, in turn, exercised its rulemaking authority to issue rules governing hunting. Those administrative rules incorporated by reference Oregon’s big-game regulations, which set the bag limit for elk but did not define the term bag. The defendant claimed that “bag” referred only to animals that the hunter had killed. Reading the statutes and regulations together, the court ruled that “bag” referred to all animals that a person possessed, regardless of killing; one needed to read the three legal sources in tandem to find the answer. The legal issue was sufficiently unclear to lead one of the three judges hearing the case to agree with Hogevoll and dissent.

These differences pose a problem for any attempt to survey a field of law. With fifty states, we cannot note all the differences. Sometimes states collectively follow a single legal rule, and sometimes they may congregate around two alternate legal approaches. These instances are easy enough to summarize. On other issues, however, states embrace a wide array of approaches, leaving the law especially difficult to summarize. Making matters more challenging is that law is often vaguer than people realize. On many legal issues, there is no clear answer, which is particularly true when a legal issue is governed not by a specific statute or regulation but instead by the common law. Although the recorded decisions of courts now number in the tens or hundreds of thousands, new factual situations still arise daily. In such cases, it simply is not possible to predict how a court would resolve the dispute; in the end, it is the ability to make such a prediction that enables us to state confidently the “law.”

Aims of Wildlife Law

With these basic points in hand, we can take the next logical step: to consider t...