CONTEXT In 1998 a symposium brought together scientists, state fisheries managers, and federal fisheries managers to share data and experiences about the impacts of fish stocking in high elevation wilderness lakes. At this symposium I presented a paper exploring some of the legislative, judicial, and policy issues related to fish stocking in wilderness, and I explicitly examined the issue of state versus federal authority for stocking fish in wilderness lakes. This paper, along with several of the other symposium presentations, was written up and published in July 2001 in the scientific journal Ecosystems. This set of papers, and my paper in particular, touched off a small fire storm of controversy. Why folks need to be aware of this issue: --heads up: it’s been a contentious issue in the past and will continue to be an issue with substantial political heat --while this research was initially focused on fish stocking, the issues apply not just to fish stocking, but ALL wildlife management activities in wilderness and other Forest Service lands I’m an ecologist and NOT a lawyer or policy analyst, so why am I talking about these issues? --because as an ecologist, this issue of state versus federal authority is, in my opinion, the single most important factor affecting the ecological integrity of aquatic systems in wilderness --because I’m NOT a lawyer --I’ve tried to learn as much as I can about these legal and judicial issues by reading the classic texts on wildlife law --I used a FS OGC briefing paper as the initial basis for my writeup on legal interpretation --two lawyers reviewed everything in our paper BOTTOM LINE: (1) what I’ll present today is nothing new and reflects long-standing and dominate legal opinion; (2) what I’ll present today is not a substitute for consulting with your own legal staff; (3) I will certainly not be able to answer some of your questions.
CONTEXT First need to understand what wilderness is...
CONTEXT Wildlife is an important part of wilderness and most people think of these two as inseparable
CONTEXT All sorts of current problems with wildlife, therefore there is an increasing need to manage wildlife populations
State agencies need and want to carry out their actions as efficiently as possible to reduce the staff time and cost, so they will want to use motor vehicles whenever possible. Because of their state mandates to provide hunting/angling opportunities, they will also manage populations for harvestable yield, and introduce game species. Several of these practices may directly compromise federal legislative mandates and agency policies.
State agencies have a mandate to provide hunting/angling opportunities, and they get a portion of their funding directly from tags and licenses. In contrast, federal agencies are mandated to protect all wildlife.
Recreational angling is an important wilderness activity and is highly valued by many people. State agencies support this recreational use by stocking fish in many wilderness lakes (a published study by Peter Bahls found that over 95% of high mountain lakes have been stocked with fish, but many if not most of these lakes did not have fish before they were artificially stocked). This stocking directly compromises the Wilderness Act mandate that modern people not manipulate or control natural systems inside wilderness.
Example of desert bighorn sheep in southern California and Arizona. Classic habitat fragmentation problem: the bighorns used to move among relatively isolated mountain ranges to access sufficient water and forage. But with highways and development, the sheep can’t move from one mountain to another, so the state agencies want to ensure sufficient food and water within each mountain range. The state agencies install “guzzlers” to provide free water to the sheep. This photo is of a rain collection mat in the Orocopia Mountains Wilderness outside of Palm Springs. The mat is situated next to a ridge and rain water is collected and channeled via pipe to the 3 water storage tanks. Water from the tanks is supplied by a sheet metal drinker with a toilet bowl float. But the rain doesn’t provide sufficient water, so California Fish and Game drives into the wilderness in the valley beyond the mat, and runs a fire hose 500 feet up to the ridge and sloshes water onto the mat to fill the tanks. Some of the big questions raised by this practice: What was the natural population level of the sheep before habitat fragmentation? 2. Is the state trying to maintain a “natural” population level or a “harvestable” population level? 3. What are the secondary, rippling impacts from these guzzlers? For example, at this guzzler above, the edge of the water bowl was surrounded by honey bees, so does the water allow a greater population level of honey bees at the expense of native bees? If so, are the pollination services of the native bees being displaced or prevented by the honey bees? 4. Is a guzzler the “minimum necessary”? 5. What impacts does a guzzler cause to the wilderness recreation experience?
Picture at the right shows the border of a wilderness, posted with a sign showing that mechanized transportation is not allowed, but there are obvious tire tracks going through the gate. These tire tracks are from the state agencies driving water trucks into the wilderness to provide water to bighorn sheep guzzlers. In the left photo, a concrete mat channels water to the walk-in drinker at the lower right of the photo.
The state agencies don’t like to drive into the wilderness because it takes time and money, and is an obvious affront to wilderness values. So they, in conjunction with a bighorn sheep society, devised a new, maintenance free bighorn guzzler. They dig a hug hole (left photo), install 3, 10,000 gallon water storage tanks, and then build a series a small (1-2 foot high) check dams to channel water from the close mountain into the storage tanks. The hoses connecting the check dams to the tanks can be seen in the right photo just above the furthest tank. The water from the tanks supplies a walk-in drinker so there’s no need to drive a truck into the wilderness to slosh water on a concrete pad, and not toilet bowl float to break down. When they install these guzzlers they carefully remove all the native vegetation and replace it exactly where it was, so a visitor a year later would probably not even know the underground tanks are there. And the small checkdams are built with native stone and the mortar is colored to match the surrounding soil. But is this appropriate in wilderness?
The publications that support these statements are: Tyler, et al. 1998. Experimental analysis of trout effects on survival, growth, and habitat use of two species of ambystomatid salamanders. Journal of Herpetology 32:345-349. Western larval salamander survivorship and growth was significantly lower in experimental ponds with introduced trout. Smith, et al. 1999. The effects of fish on assemblages of amphibians in ponds: a field experiment. Freshwater Biology 41:829-837. Eastern treefrog tadpoles and newt adults were significantly less abundant in experimental ponds with introduced bluegill fish. Knapp, et al. 2000. Non-native fish introductions and the decline of the mountain yellow-legged frog from within protected areas. Conservation Biology 14:428-438. Non-native introduced fish significantly reduced the presence and numbers of mountain yellow-legged frogs in the John Muir Wilderness and Kings Canyon National Park. Matthews, et al. 2001. Effects of nonnative trout on Pacific treefrogs (Hyla regilla) in the Sierra Nevada. Copeia 2001(4):1130-1137. Non-native introduced fish significantly reduced the presence and numbers of Pacific treefrogs in the John Muir Wilderness and Kings Canyon National Park. Knapp, et al. 2001. Resistance and resilience of alpine lake fauna to fish introductions. Ecological Monographs 71: 401-421. Frogs, benthic macroinvertebrates, and large zooplankton were significantly reduced by fish introductions, and all recovered 11-20 yrs after fish disappearance. Adams, et al. 2001. Geography of invasion in mountain streams: consequences of headwater lake fish introductions. Ecosystems 4:296-307. Fish introduced in headwater lakes and streams were shown to disperse throughout stream basins. Schindler, et al. 2001. Alteration of nutrient cycles and algal production resulting from fish introductions into mountain lakes. Ecosystems 4:308-321. Introduced trout fundamentally alter lake nutrient cycles and stimulate primary production. Pilliod, et al. 2001. Local and landscape effects of introduced trout on amphibians in historically fishless watersheds. Ecosystems 4:322-333. The abundance of amphibians at all life stages was significantly lower in lakes with fish compared to lakes without fish.
Data from the Frank Church River of No Return Wilderness in Idaho show that even in lakes that do NOT have stocked fish, average frog density is reduced.
Frog density is reduced even in fishless lakes because it appears that the frogs move to overwinter in lakes that do have stocked fish, and because the frogs take several years to mature, it appears that they are still small enough to be eaten by the fish in these overwintering lakes. Data are from Columbia Spotted Frogs in the Big Horn Crags area of the Frank Church River of No Return Wilderness. Pilliod, D.S., and C.R. Peterson. 2001. Local and landscape effects of introduced trout on amphibians in historically fishless watersheds. Ecosystems 4:322-333.
In many situations there is excellent communication and coordination between state and federal managers, BUT in many other cases there is poor communication and coordination, resulting in a host of other problems I’m going to focus on the “us versus them” problems to clearly understand what these problems are. Only by understanding these problems can we work to solve them.
Why does this conflict occur? There are several reasons which make much sense. Most state fish and game departments receive significant funding from hunting and fishing licenses, and their mission statements often compel the agencies to take actions to support these sport uses of wildlife. Further, with limited funding, state agencies will use the most efficient means for implementing their programs, and in the case of fish stocking this means the use of helicopters and airplanes. In contrast, FS wilderness policy clearly states that efficiency, economics, and convenience are not appropriate standards in deciding how to do something in wilderness.
In the Wilderness Act, this quote about “minimum requirements” is interpreted in different ways by different folks, and understandably, folks from different agencies (and different cultures and value-sets) will interpret this very differently. State agencies use this quote from the Wilderness Act about state jurisdiction to assert that the Wilderness Act supports states’ rights. But legal scholars point out that this identical language occurs in many Congressional laws, and they further assert that this quote was meant to support the status quo, what that was and is, and not explicitly support states’ rights. What does “shall” mean in the CA Desert Protect Act? Does it mean that the state agencies MUST use motor vehicles? No, but the state interprets this sentence to mean that it can use motor vehicles whenever it wants to, while the federal agencies interpret this to mean that the use of motor vehicles by the state must be permitted from the federal agency.
As in most disputes, both sides have a basis for their claim. In this case The Constitution is the basis of the claims on both sides. The Police Powers were written in direct response to the fear that the federal government might become too much like royalty, what the developing nation wanted to avoid. So the 10 th Amendment was written to make sure that the states retained all rights not explicitly taken by the federal government. This analysis of state versus federal authority, and the subsequent analyses of US Supreme Court decisions, is taken from: Landres, P., S. Meyer, and S. Matthews. 2001. The Wilderness Act and fish stocking: an overview of legislation, judicial interpretation, and agency implementation. Ecosystems 4:287-295.
Case was over transportation of wild fowl across state lines. At the time of this Supreme Court decision, there was no federal wildlife legislation. This is a very important case because the states assert that this case validates their claim of sole authority for managing wildlife. This case is one of THE primary bases for the states claiming this authority (the other primary basis is the 10 th Amendment).
Deer populations on the north rim of the Grand Canyon were exploding because of predator removal, and the FS wanted to shoot deer to reduce the population. Arizona said that the FS couldn’t control deer pops without state hunting permits, and the FS claimed that they had the right to reduce the deer herd to protect the vegetation that the deer were severely overbrowsing. Supreme Court said that the FS could reduce the deer herd to protect public property that the deer were destroying.
The 1971 Wild and Free Roaming Horses and Burros Act mandated protection of burros. Under the New Mexico Estray Law, NM rounded up a herd of burros which were destroying game habitat. The BLM brought suit against NM claiming that the Burros Act superceded NM law. This case was significant because it expanded federal rights to more than just protecting public property from damage.
This case put the final nail in the coffin on Geer v. Connecticut. Interestingly, in discussions with states’ they rarely mention that Geer has been overruled by Hughes.
These problems over authority between states and feds have been going on since the 1920s, and IAFWA, an umbrella organization of state fish and game departments worked out this Agreement.
The Agreement basically does a great job of supporting wilderness values, and lays down a solid set of guidelines for state and federal cooperation. The Agreement covers a whole range of different topics.
Although the basic IAFWA Agreement is, in my opinion, really good, there are still several areas where it can be improved. Notably, the definition of “indigenous” has caused lots of conflict between state and federal agencies.
The 2000 review of successes and failures was meant to be the first step towards understanding what was working with the IAFWA Agreement and what wasn’t. The March 2002 proposed revision of the entire IAFWA Agreement was considered “dead on arrival” to many within the wilderness community because of the perceived bias in this draft towards the state agencies. After the March 2002 was pronounced DOA, most people felt that the basic IAFWA Agreement was in fact very good, and that just an addendum clarifying the few problems would be needed. A group of agency people and IAFWA representatives met for a week in February 2003 to hammer out a draft addendum, but when this given to the lawyers at IAFWA, they pronounced it DOA.
In summary --the science is clear that fish stocking and other wildlife management activities may have wide ranging impacts to wilderness --legislation doesn’t really solve anything because of ambiguities and different interpretations of certain key sections. --the U.S. Supreme Court clearly supports federal involvement in decisions affecting wildlife We can try to use this information to forge better relationships between federal and state agencies. The goal is to be open, honest, and straightforward to discuss both the benefits and impacts of wildlife management activities, and to base these discussions on facts when facts are available, and to be clear and explicit with value judgments.
This bottom line is not a big deal for some, but for others, especially in the state fish and game agencies, these are fighting words because this directly contradicts what they have been saying for years: that they have sole authority for managing wildlife. This is certainly a long, complicated story that I’ve distilled here, and there are many intertwined issues that reinforce the traditional view of sole state authority for managing wildlife in wilderness, including --funding (especially the Pittman-Robertson Act of 1937 and the Dingell-Johnson Act of 1950) --agency culture --agency tradition --politics The big question is, Will state and federal agencies accept that wilderness values are just as valid as wildlife values? And then do what is needed to improve communication, coordination, cooperation, and mutual respect for one another.
State and federal agencies can work together to resolve pressing issues.
Managing fish and wildlife in wilderness
<ul><li>This document is contained within the Fish and Wildlife Management Toolbox on Wilderness.net. Since other related resources found in this toolbox may be of interest, you can visit this toolbox by visiting the following URL: http://www.wilderness.net/index.cfm?fuse=toolboxes&sec=fishwildlifemgmt. All toolboxes are products of the Arthur Carhart National Wilderness Training Center. </li></ul><ul><li>This slide show was copied from: http://www.wilderness.net/toolboxes/documents/fishwildlifemgmt/Managing%20fish%20and%20wildlife%20in%20wilderness.ppt . </li></ul>
Managing Fish and Wildlife in Wilderness Peter Landres Aldo Leopold Wilderness Research Institute USDA Forest Service, Rocky Mountain Research Station <ul><li>Is there a problem? </li></ul><ul><li>Is there a question about state versus federal authority? </li></ul><ul><li>What have the courts said? </li></ul><ul><li>Has IAFWA helped? </li></ul>
CONTEXT: What is Wilderness? <ul><li>From the 1964 Wilderness Act, wilderness is: </li></ul><ul><ul><ul><li>“ Untrammeled” (uncontrolled, not manipulated) </li></ul></ul></ul><ul><ul><ul><li>“ Natural” (“primeval character and influence”) </li></ul></ul></ul><ul><ul><ul><li>“ Undeveloped” (evidence of people is “substantially unnoticeable”) </li></ul></ul></ul><ul><ul><ul><li>“ Outstanding opportunities” for wilderness experiences (“solitude” or “primitive recreation”) </li></ul></ul></ul><ul><li>Wilderness is managed: </li></ul><ul><ul><ul><li>“ for the use and enjoyment…as wilderness” </li></ul></ul></ul>Wilderness is managed for ecological and social values
Arctic Wild, Crisler 1958 “ Great wilderness has two characteristics: remoteness and the presence of wild animals in something like pristine variety and numbers.” Wilderness and the American Mind, Nash 1967 “ Etymologically, the term means ‘wild-dêor-ness,’ the place of wild beasts.” Wildlife in Wilderness, Hendee and Schoenfeld, 1990 “ Wilderness without wildlife and wildlife without the freedom of wilderness are virtually unthinkable, their interdependency is so firmly established in our minds.” CONTEXT: Wildlife and Wilderness
CONTEXT: Need to Manage Wildlife <ul><ul><li>Increasing use of all types </li></ul></ul><ul><ul><li>Increasing region-wide threats and development on adjacent lands </li></ul></ul><ul><ul><li>Increasing disruption of ecological processes and loss of species </li></ul></ul>
Conflict over appropriate wildlife management activities -- vehicles, surveys, tagging, marking, installations, modifying habitat, introducing non-native species Aerial stocking a wilderness lake Spraying rotenone in a wilderness lake Is There a Problem Managing Wildlife in Wilderness?
Is There a Problem Managing Wildlife in Wilderness? Conflict between state and federal management goals -- sport versus other wildlife values Fish stocking impacts on Mountain Yellow-Legged frogs Stocking lakes with sport fish
Is There a Problem Managing Wildlife in Wilderness? Conflict between state and federal management goals -- sport versus wilderness values Fishless, unmanipulated lake ecosystems Recreational fishing opportunities
Is There a Problem Managing Wildlife in Wilderness?
Is There a Problem Managing Wildlife in Wilderness?
Is There a Problem Managing Wildlife in Wilderness?
What does Research Say About Impacts from Stocking Fish? Research has clearly shown: <ul><li>Significant declines of native fish </li></ul><ul><li>Significant declines of amphibians and salamanders </li></ul><ul><li>Significant changes in phytoplankton, zooplankton, and invertebrates </li></ul><ul><li>Significant changes in nutrient processes </li></ul>
Frog abundance in fishless lakes is also reduced by introduced trout
In the Big Horn Crags, Introduced Fish Occupy Most Overwintering Sites 0 .5 1 Kilometers Breeding Sites Summer Habitats Overwintering Sites
Conflict Between State Wildlife and Federal Wilderness Managers <ul><li>Examples </li></ul><ul><ul><ul><li>Refusal to coordinate planned activities </li></ul></ul></ul><ul><ul><ul><li>Refusal to cooperate or share data </li></ul></ul></ul><ul><ul><ul><li>Lack of professionalism (us versus them) </li></ul></ul></ul><ul><ul><ul><li>Lack of respect </li></ul></ul></ul><ul><ul><ul><li>Stalling and stonewalling </li></ul></ul></ul><ul><ul><ul><li>Intentional damage </li></ul></ul></ul><ul><ul><ul><li>Litigation </li></ul></ul></ul>
Reasons for This Conflict Between State and Federal Managers Differing agency mandates, policies, missions, cultures <ul><li>Arizona Game and Fish Department </li></ul><ul><li>“ To conserve, enhance, and restore Arizona’s diverse wildlife resources and habitat through aggressive protection and management programs …” (Mission Statement) </li></ul><ul><li>Forest Service Policy </li></ul><ul><li>“ where a choice must be made between wilderness values…or any other activity, preserving the wilderness resource is the overriding value . Economy, convenience, commercial value, and comfort are not standards of management or use of wilderness.” (FSM Section 2320.6) </li></ul>
Reasons for This Conflict Between State and Federal Managers Ambiguity, differences in interpreting federal laws “ Nothing in this Act shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish in the national forests.” “ except as necessary to meet the minimum requirements for the administration of the area…there shall be no temporary roads, no use of motor vehicles…no structure or installation” <ul><li>1964 Wilderness Act </li></ul>“ Management activities to maintain or restore fish and wildlife populations… shall include the use of motorized vehicles by the appropriate State agencies.” <ul><li>1994 California Desert Protection Act </li></ul>
State versus Federal Authority <ul><li>Federal agencies assert their authority under four different Constitutional Clauses </li></ul><ul><li>-- Property: power to govern property </li></ul><ul><li>-- Treaty: power to engage in treaties </li></ul><ul><li>-- Commerce: power to regulate interstate commerce </li></ul><ul><li>-- Supremacy: federal law governs if there is conflict </li></ul><ul><li>States assert their authority under the 10 th Amendment to the U.S. Constitution, the Police Powers: </li></ul>“ The powers not delegated to the United States…are reserved to the states…”
Judicial Interpretation of the U.S. Supreme Court <ul><li>1896 -- Geer v. Connecticut </li></ul><ul><li>State authority preempts federal management of wildlife, and that “the right to preserve game flows from the undoubted existence in the State of a Police Power.” </li></ul>
<ul><li>1896 -- Geer v. Connecticut </li></ul><ul><li>1920 -- Missouri v. Holland </li></ul><ul><li>Upheld federal use of the Treaty Clause (the 1918 Migratory Bird Treaty Act) and Supremacy Clause that federal law supercedes conflicting state law </li></ul>Judicial Interpretation of the U.S. Supreme Court
<ul><li>1896 -- Geer v. Connecticut </li></ul><ul><li>1920 -- Missouri v. Holland </li></ul><ul><li>1928 -- Hunt v. United States </li></ul><ul><li>Upheld federal use of Property Clause to protect public land from resident wildlife (deer on the Kaibab NF) </li></ul>Judicial Interpretation of the U.S. Supreme Court
<ul><li>1896 -- Geer v. Connecticut </li></ul><ul><li>1920 -- Missouri v. Holland </li></ul><ul><li>1928 -- Hunt v. United States </li></ul><ul><li>1976 -- Kleppe v. New Mexico </li></ul><ul><li>Upheld federal use of Property and Supremacy clauses to manage wildlife (burros), and that federal management of wildlife not limited to just protecting public land from damage as stated in Hunt v. United States </li></ul>Judicial Interpretation of the U.S. Supreme Court
<ul><li>1896 -- Geer v. Connecticut </li></ul><ul><li>1920 -- Missouri v. Holland </li></ul><ul><li>1928 -- Hunt v. United States </li></ul><ul><li>1976 -- Kleppe v. New Mexico </li></ul><ul><li>1979 -- Hughes v. Oklahoma </li></ul><ul><li>Upheld federal use of Commerce Clause to manage wildlife, and that “ Geer v. Connecticut was decided relatively early…we hold that time has revealed the error of the early resolution reached in that case, and accordingly Geer is today overruled.” </li></ul>Judicial Interpretation of the U.S. Supreme Court
Agreement with the International Association of Fish and Wildlife Agencies Agreement between the FS and BLM with IAFWA “ Policies and Guidelines for Fish and Wildlife Management in Wilderness and Primitive Areas” -- approved as FS and BLM policy in 1976 -- substantially revised in 1986 -- reaffirmed by the FS in 1995
Establishes non-binding guidelines that “should serve as a framework for cooperation” between state and federal agencies IAFWA Agreement Topics covered in the IAFWA Agreement <ul><li>Fish and Wildlife research </li></ul><ul><li>Facility development and habitat alteration </li></ul><ul><li>Endangered and threatened species </li></ul><ul><li>Fisheries management </li></ul><ul><li>Wildlife management </li></ul><ul><li>Visitor management </li></ul>
IAFWA Agreement A Few Problems <ul><li>No plan for resolving conflicts and differences of opinion </li></ul><ul><li>Vague language (“preserve the natural character,” “may be permitted,” “identified in the wilderness management plan,” “standard techniques of population sampling,” “mutual agreement”) </li></ul><ul><li>Defines “indigenous” as “species of fish traditionally stocked before wilderness designation...if the species is likely to survive” </li></ul>
Status of the IAFWA Agreement <ul><li>November 2000 – reaffirmation by FS and BLM followed by formal review of successes and failures </li></ul><ul><li>March 2002 – proposed revision by FS and BLM Fisheries Program leaders (DOA to wilderness) </li></ul><ul><li>February 2003 – proposed addendum by FS,BLM, some states (DOA to IAFWA) </li></ul><ul><li>Currently, unknown what will happen next or how known problems will be resolved </li></ul>
Resolving These Conflicts Over Managing Wildlife in Wilderness Provide understanding about science, legislation, and judicial decisions that lets each side know their respective responsibilities and limits <ul><li>Legislation – does not give state agencies sole authority for managing wildlife in wilderness; doesn’t resolve anything </li></ul><ul><li>Supreme Court decisions (5) – clearly support federal involvement in wildlife management decisions and activities </li></ul><ul><li>Science – clear and wide-ranging impacts to wilderness values from some wildlife management activities </li></ul>
The Bottom Line: State and Federal agencies share authority for managing wildlife, therefore they must cooperate, communicate, and coordinate to sustain both wildlife and wilderness
An Example of Working Together Natural rockfall in the Yolla Bolly-Middle Eel Wilderness, CA blocked listed summer steelhead migration to spawning grounds After clearing the rockfall