Law and Policy Exam 2

Wildlife in the US are a…

public resource not privately held (Martin vs Waddell 1842)

Most wildlife in the US are managed by…

states on behalf of the people

Game Commission 1895

commissioners appointed by governor, to manage and protect wildlife and their habitats while promoting hunting and trapping for current and future generations

Exceptions of the Game Commission

migratory birds and endangered species

The Great Slaughter

1870-1873, started with 30 million, market hunting for hides, meat reduced population to 500 in 1890, only free-ranging herd remaining is in yellowstone

Grizzly Bear

original population of 50,000 to 100,000 in US and declined to 500 in 1970, eliminated from 98% of their historic range

Whitetail Deer

30 million in US when Europeans arrived, declined to 350,000 in 1900, hunting pressure lead to decline

Bighorn Sheep

2 million in 1800 to 25,000 in 1960

North American Elk

10 million in US at time of Lewis and Clark, declined to between 40,000 and 10,000 in 1907, commericla hunting leading cause of decline

Pronghorn Antelope

10 million at time of Lewis and Clark, declined to 10,000 by 1907, commericla hunting pressure leading cause of decline

Passenger Pigeon

started 3-5 billion, last wild bird shot in ohio in 1900

Which species decline was caused by habitat loss?

turkey, black bear, waterfowl, waterbirds, fisheries, passenger pigeon

Which species decline was caused by commercial harvest?

bison, pronghorn, elk, deer, waterfowl

Which species decline was caused by subsistence hunting?

elk and deer

Which species decline was caused by predator control programs?

grizzly bear, wolf, coyote

William T. Hornaday

chief taxidermist and curator, united states national museum, studied decline of american bison, founder and first director of US national zoo, founder and director of bronx zoo, authored 2 dozen books and hundreds of articles arguing against overhunting and for the conservation of wildlife, advocate for wildlife, parks, and wildlife refuges, famously known as the person who saved the buffalo

Hornaday Bison

1886 expedition, mussellshell river region of montana to collect the lasts urviving specimens, hornaday founded the american bison society and helped push legislation through congress to protect the bison

George Bird Grinnel

scientist, anthropologist, writer, conservationist, national audobon society, boone and crocket club, fair chase ethic

Fair Chase Ethic

general recognition of the need for defined seasons and bag limits, approproate means and methods of taking game, accepting responsibility for management of wildlife populations, voluntary restraint

Ding Darling

editorial cartoonist, creator of federal duck stamp program, creator of national wildlife federation, creator of cooperative fisheries and wildlife programs, pushed for PR, influenced public opinion

Lacey Act 1900

outlawed interstate commerce of illegally captured game, first federal wildlife conservation law, original motivation was with birds, banned international trade of feathers, fostered programs to protect native birds, prevent introduction of exotic species

Modern Incarnation of Lacey Act

all but one section has been supplemented by legislation, current focus prohibits interstate and international trafficking of species for the interest of agriculture, forestry, or resources of the US, illegal wildlife trade generates 5 billion dollars annually

Who Created the National Wildlife Refuge System?

Teddy Roosevelt 1903

PA Fishing License Fees

1,060,000 license holders, $25 million

Nationwide Fishing License Fees

$709 million

Fishing Participation

29.4 million anglers, 9% population

Fishing Problem

fish and wildlife agencies are responsible for game and nongame species but the user funded model generates money for game species

PA Hunting License Fees

855,000 license holders, $35 million

Hunting Participation

11.5 million hunters, 5% population

Nationwide Hunting License Fees

$821 million

Hunting Problem

license fees are detirmined by state legislatures

Funding Mechanism of North American Model

user funded, license fees, federal excise taxes, privately funded conservation groups, anglers and hunters fund conservation in the US at a rate of $3 billion per year

Additional Tenant - Resource First

decision makers should give highest consideration to protection of fisheries and wildlife populations (conservative management)

Additional Tenant - Hunting and Angling as Management Tools

when specific management actions are required, this is the most appropriate tool for recreational harvest

Tenant 7

scientific management - management of fisheries and wildlife must rely on scientiic foundation

Challenges of Scientific Management

we live in a highly politicized world and wildlife are drawn into political mud

Tenant 6

fisheries and wildlife are international resources

Challenges of fisheries and wildife being international resources

isolationism

Tenant 5

non-frivalous use - can only be killed for a reason

Challenges with non-frivalous use

few species legally hunted for population management are excluded from the waste rule

Tenant 4

egalitarianism - everyone has an opportunity to fish and hunt

Challenges with egalitarianism

economic inequalities limit access, lack of public lands limits access, restrictive laws at local level limit access

Tenant 3

democratic rule of law - everyone plays by the same rules

Challenges of democratic rule of law

tyranny of the majority, local laws can supersede state laws

Tenant 2

commercial use of wildlife is prohibited

Challenges of commercial use fo wildlife being prohibited

fish, reptiles, amphibians are harvested and sold under a commercial license, access to wildlife, in form of hunting leases is commercialized

Tenant 1

the public trust doctrine - wildlife are a public resource managed by the state on behalf of the people

Elements of Wildlife Restoration

fair chase ethic, habitat restoration, investment in public lands, north american model, implementation of user-funded system

North American Model of Wildlfie Management

unique conservation ethic, restored a depleted resource to abundance across entire continent, offers a model for broader societal movement towards environment sustainability

National Oceanographic and Atmospheric Administration

national marine fisheries service, ESA enforcement for marine species, commercial and sport fishing in salt water, national weather service, national ocean service

US Fish and Wildlife Service 1940

established from biological survey and fisheries service, enforcement of endangered species act, enforcement of lacey act, enforcement of golden and bald eagle act, management of migratory birds, management of national wildlife refuges

Wild Turkey

increased from 30,000 to 7 million

Federal Agencies and Enforcement of Environmental Law

legislation passed by lawmakers, enacted by implementation of regulations, regulations promulgated and enforced by appropriate agency, regulatory process is open to public comment and judicial review

Dingell Johnson

sport fish restoration act 1950, 10% on fishing gear, 3% on boat engines, generates $400 million annually

Land and Water Conservation Fund Act 1964

revenue from offshore oil drilling used to pay for conservation projects and public lands, generates $900 million annually, congress historically annually raided fund used for other purposes, reauthorized and fully funded by Dingell Act of 2019 and Great American Outdoors Act of 2020, divided into “state side” local grants and a “federal side” grants to land management agencies

Federal Aid in Wildlife Restoration Act 1937

links consumer spending with resource protection and enhancement, pittman robertson 1937 a 11% tax on firearms, ammunition, bows, arrows, funds returned to states based on formula involving area
and number of hunters, numerous conditions, including that the money must be spent on management and enhancement of wildlife resources,, taxable goods are narrowly defined, as clothing, footwear, optics, and camping gear, are excluded

Natural Resources and Conservation Service 1935 Soil Conservation Act, SCS Soil Conservation Service, Housed in USDA

federal / state programs that pays farmers to employ conservation friendly practices, take sensitive lands out of production, or protect land
from development, programs voluntary in nature, farm bill spending 140 billion per year, all conservation programs combined 1 billion, 50
million acres protected

Federal Duck Stamp Act 1934

migratory bird conservation fund 1929, wetland acquisition, hoover, but no funding, formerly “migratory bird hunting and conservation
stamp”, passed congress and signed into law 1934, requires purchase of an adhesive stamp before hunting waterfowl or entering a national wildlife refuge, 98% of proceeds go to migratory bird conservation
fund, initially $1, now $25, currently $40 million per year raised

Migratory Bird Treaty

motivated by plume hunting, market hunting, moved bird management into the realm of federal government, outlawed market hunting, provided authority for secretary of interior to allow hunting of migratory birds and commerce in migratory birds

Migratory Bird Treaty Ratified 1918

1916 treaty between US, great britan, japan, mexico, and russia, Made it illegal to “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, deliver for shipment, ship, cause to be shipped, deliver for transportation, transport, cause to be transported, carry, or cause to be carried by any means whatever, receive for shipment, transportation or carriage, or export, at any time, or in any manner, any migratory bird, included in the terms of this convention or the protection of migratory birds or any part, nest, or egg of any such bird”

The People Influence…

congress and executive branch

Congress influences…

executive branch

Executive branch influences…

the courts

The courts influence…

congress and executive branch

The People

social attitudes drive legislation

Congress

creates legislation and appropriates funds

The Courts

are laws consistent with constitution, are regulations consistent with laws, is enforcement consistent with published regulation

Executive Branch

implements laws by promulgating specific regulations from legislation and enforces regulation

Rivers and Harbors Act 1899

oldest environmental law in US, prohibited the discharge of refuse matter of any kind into the navigable waters or tributaries of the
US without a permit, prohibited the excavation, filling, or alteration of the
course, condition, or capacity of any port, harbor, channel, or other navigable waters without a permit, illegal to dam navigable streams

Air and water laws before 1969 were regulated by…

state legislation (epic fail)

National Environmental Policy Act (NEPA 1970)

initiated by nixon, established environmental protection agency (EPA), requires that prior to a federal agency taking any "major" or "significant" action that the agency must consider the environmental impacts of that action, EIS’s and EA’s

An environmental impact statement has to be written for all…

major federal actions which may have a significant impact on the environment

An environmental analysis must be written if…

a major federal action will not have a significant impact on the environment

EIS must include…

environmental impacts of proposed action, unavoidable adverse
environmental impacts alternatives including no action, maintenance of long-term ecological productivity, secondary effects of implementing proposed action

An EA must include…

same contents as EIS but briefer only if the agency has issued a “finding of no significant impact”

Roll Back NEPA - Trump Administration 2020

limits study time period to 24 months, doesn’t allow evaluation of cummulative impacts, excludes broad categories of federal activities
from environmental review, make grazing, oil, gas on public lands easier, biden reversed the rollback, debt ceiling law reversed the reversal

Clean Air Act 1970

passed with strong bipartisan support, authorized EPA to set limits on emissions, EPA focused on lead, particulates, sulfur dioxide, carbon monoxide, nitrogen oxides, and ozone, purpose to protect human health and environmental quality

Clean Air Act Trends 1980-Present

93% decrease in lead, 80% decrease in carbon monoxide, 76% decrease in sulfur dioxide, 48% decrease in NOx, 38% decrease in particulates, 30% decrease in ozone

Non-Attainment Areas

90 million americans live in non-attainment areas

Modifcations / Ammendments to Clean Air Act

1977 - emission control for autos, 1990 - SO2 and NOx reductions to battle acid rain, 1997 - revised standards for ozone and particulates

Clean Water Act 1972

an amendment of federal water pollution control act 1948, vetoed by nixon, congress overrode his veto within 24 hours, subsequently amended by congress, the primary federal law in the US governing water pollution, established that surface waters would meet standards
necessary for human use including recreation, protects wetlands, non-point source discharges minimally regulated

Clean Water Act pt. 2

requires individuals and corporations to obtain NPDES permits before releasing any discharge into “navigable waters" (including, by a regulatory definition, “significant nexus” (wetlands), and required EPA to create effluent discharge limits for point sources (releases of controllable streams of wastewater, such as from factory pipes)

Are point source discharge regulations successful?

yes - regulations apply to approximately 50,000 facilities, and are responsible for preventing the discharge of almost 700 billion pounds of pollutants each year, since 1972, the percent of surface waters that meet goals and support basic uses such as fishing or swimming has doubled from 35% to 70%

Are wetland loss regulations successful?

yes - from the 1950s to the 1970s, an average of 458,000 acres of wetlands were lost each year, currently, there is little net loss or gain of wetlands in the US

Are non-point source regulations successful?

no - agriculture, nutrient loading associated with fertilizer applications,
herbicides and insecticides, manure from CAFO’s

Waters of the US Rule Making

CWA was originally interpreted as having jurisdiction over small streams and wetlands, due to a “significant nexus” to navigable waters, two US Supreme Court decisions (2001 SWANCC, 2006 Rapanos) cast doubt on this interpretation, plurality opinion in rapanos - justice kennedy held that a wetland or non-navigable water-body falls within the clean water act’s ambit if it bears a “significant nexus” to a traditional navigable waterway. Such a nexus exists where the wetland or water-body, either by itself or in combination with other similar sites, significantly affects the physical, biological, and chemical integrity of the downstream navigable waterway, EPA was ordered by the court to clarify the scope of the CWA

Clean Water Rule of 2015

EPA conducted scientific studies, clarified which waters were subject to regulation with clearly defined distances and other empirical measures,
sound scientific basis, no change to the exemptions for forestry, ranching, or farming, overall extent of rule virtually unchanged, delayed and rescinded by Trump administration in 2017 (it’s complicated)

Navigable Waters Protection Rule

signed Jan 23, 2020, President Trump, response to pressure from industry and special interest groups, completely removes protections for many wetlands and headwater streams, upheld in Sackett v. EPA (May 2023), which narrowed the definition of WOTUS

Sackett vs EPA

“first, that the adjacent body of water constitutes waters of the United States, (i.e., a relatively permanent body of water connected to
traditional interstate navigable waters), “second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”, about 50% of wetlands in US lost federal protection

Endangered Species Act 1973

provides broad protection for species of fish, wildlife and plants that are listed as threatened or endangered in the U.S. or elsewhere, protects critically imperiled species from extinction

ESA section 9 bans the…

“taking” of endangered species: harm, buy, sell or major habitat modifications where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering but incidental taking is permitted

The Endangered Species Act is administered by the…

US fish and wildlife service (USFWS) and national oceanic and atmospheric administration (NOAA), listing can be at the initiative of the federal agency, or petition, endangered and threatened categories, mandates formulation of a recovery plan, including designation of “critical habitat”

Who does the Endangered Species Act Affect?

federal agency that permits, licenses, funds, or otherwise authorizes activities must consult with the fish and wildlife service as appropriate, to ensure that its actions will not jeopardize the continued existence of any listed species

Who does the Endangered Species Act NOT Affect?

private landowners

The Snail Darter Problem

Tellico Dam – 1978 amendment created a “God Squad” of seven presidential appointees who can override the ESA

The God Squad

seven cabinet level appointees who can vote to allow a species to go extinct if four conditions are met

4 Conditions that must be met for the God Squad

1. there must be no reasonable alternative to the agency's action

2. the benefits of the action must outweigh the benefits of an alternative action where the species is conserved

3. the action is of regional or national importance

4. neither the federal agency or the exemption applicant made
   irreversible commitment to the resources

What are the 3 times the God Squad has been used in history?

snail darter, whooping cranes, spotted owl

Hunter Station Bridge

built in 1934, structurally defficient, 1100 vehicles per day, $24 million in federal funds, several “kill zones” of significant size, totaling 4800 square meters, allegheny river at this site has the world’s largest
populations of clubshell and northern riffleshell mussels, federally listed species, and contains several other listed species, work must minimize adverse impact on endangered species

Hunter Station Bridge pt. 2

estimated mussel density of 35 per square meter, estimated populations of 168,720 mussels residing in kill zones, two-thirds of the mussels are federally listed, northern riffleshell, clubshell, rayed bean, snuffbox, and sheepnose, 131,000 mussels had PIT tags attached and relocated, 91,000 listed species moved to streams in IL, IN, OH,
PA, NY, KY, WV, and the salamanca reservation, common species relocated to clarion river, shenango river, and other area streams