WILDLIFE RESOURCE: A partial summary

History

1. Lacey Act -1900.

Forbade transportation or sale in interstate commerce of animals taken illegally in the state of origin.

2. Migratory Bird Treaty Act -1918.

Established the DoI as a super game agency that manages migratory bird populations.

3. Bald Eagle Protection Act -1940.

Imposes a flat ban on the killing or molesting of bald and golden eagles except with federal permission.

4. Fish and Wildlife Coordination Act -1958.

Requires that federal agencies ensure that "wildlife conservation" receive "equal consideration" and coordination with "other features of water-resource development programs" and requires reports to Congress on plans for mitigation of wildlife habitat losses due to federal projects.

5. Anadromous Fish Conservation Act -1965.

Did not effect much real protection for salmon, but its provisions did stop at least one dam. (Udell v. PPC 1967).

6. Precursers of ESA were passed in 1966, 1969. See infra.

7. National Environmental Policy Act - 1969/70.

Forces planning, consultation, and an important trigger for other wildlife statutes.

8. The Wild and Free-Roaming Horses and Burros Act - 1971.

Was a watershed, as it marked the beginning of a more activist Congress with regard to wildlife regulation.

9. The Marine Mammal Protection Act -1972.

Declared a moratorium of all taking of or commerce in all marine mammals, w/ a few exceptions.

10. The Endangered Species Act -1973.

A revised version of acts passed in 1966 and 1969, was and is, the high point if federal law protecting certain species of wildlife. Species listed as endangered or threatened are legally sheltered from virtually all human acts that could tend to diminish their numbers.

• Under § 7 all federal agencies are enjoined from actions that are "likely to jeopardize" the continued existence of a listed species, and must consult to determine the presence of and effects on species -- ie. a biological assessment, and possible formal consultation with the US FWS. Agencies cannot make irreversible resource commitments during the consultation process that would foreclose reasonable alternative measures with no adverse effects on listed species or critical habitat. See: Pacific Rivers Council v. Thomas (9th Cir. 1994);
• § 9 forbids all persons from "taking" -- ie. harass, harm, pursue, hunt, shoot, would, kill, trap, capture or collect -- a listed species on or off federal lands. By FWS rule "harm" appropriately includes the destruction of critical habitat. See: Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S.Ct. 2407 (1995).

11. Sikes Act Extension -1974.

12. Fishery Conservation and Management Act -1976.

13. Fish and Wildlife Conservation Act -1980.

Wildlife and the Constitution

The Commerce Clause is found at U.S.Const. Art. I, Sect 8., Cl. 3.

It is written in affirmative language as one of Congress's enumerated and clearly articulated powers; however the clause is used to limit states' powers to regulate interstate commerce by negative implication -- what is implied but is not written explicitly (and thus "dormant") is used to limit state power.

Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371 (1978).

HELD a state licensing scheme with substantial differential for in-state vs. out-of-state fees for elk hunting upheld as rational because:

• the interest is not protected under Priviledges & Immunities Clause of the Constitution because sport hunting is not an interest within purview of P & I Cl.: it is not fundamental to the well-being and maintenance of the Union -- not a national concern, and
• lowest standard of review for Equal Protection (14th Amendment) analysis applies because sport hunting is not a fundamental right and hunters are not a suspect class.

Note on Equal Protection Analysis:

The Court will apply strict scrutiny to fundamental rights and suspect classes: Otherwise courts will generally use the rational basis test (RBT):

Fundamental Rights

Are explicitly or implicitly guaranteed by the Constitution: e.g. explicit in 1st Amendment, as in free speech and freedom of religion, or implicit, as determined by the Court: privacy, interstate travel.

Suspect classes

Include race, sex, national origin, alienage (w/exceptions) where a long history of discrimination is evident.