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Managing Fish and Wildlife in Wilderness

Peter Landres

Aldo Leopold Wilderness Research Institute

USDA Forest Service, Rocky Mountain Research Station

• Is there a problem?

• Is there a question about state versus federal authority?

• What have the courts said?

• Has IAFWA helped?

CONTEXT: What is Wilderness?

From the 1964 Wilderness Act, wilderness is:

• “Untrammeled” (uncontrolled, not manipulated)

• “Natural” (“primeval character and influence”)

• “Undeveloped” (evidence of people is “substantially unnoticeable”)

• “Outstanding opportunities” for wilderness experiences (“solitude” or “primitive recreation”)

Wilderness is managed:

• “for the use and enjoyment…as wilderness”

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

• Increasing use of all types• Increasing region-wide threats and development on adjacent lands• Increasing disruption of ecological processes and loss of species

Conflict over appropriate wildlife management activities

-- vehicles, surveys, tagging, marking, installations, modifying habitat, introducing non-native species

Aerial stocking a wilderness lakeSpraying 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 ecosystemsRecreational 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:

• Significant declines of native fish

• Significant declines of amphibians and salamanders

• Significant changes in phytoplankton, zooplankton, and invertebrates

• Significant changes in nutrient processes

R2 = 0.9793

0.00

0.05

0.10

0.15

0.20

50 60 70 80 90 100

Percent Lentic Area Occupied by Trout / Basin

Ave

. Fro

g De

nsity

in

Fish

less

Site

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Frog abundance in fishless lakes is also reduced by introduced trout

0 .5 1 Kilometers

Breeding Sites

Summer Habitats

Overwintering Sites

In the Big Horn Crags, Introduced Fish Occupy Most Overwintering Sites

Conflict Between State Wildlife and Federal Wilderness Managers

Examples

• Refusal to coordinate planned activities

• Refusal to cooperate or share data

• Lack of professionalism (us versus them)

• Lack of respect

• Stalling and stonewalling

• Intentional damage

• Litigation

Reasons for This Conflict Between State and Federal Managers

Differing agency mandates, policies, missions, cultures

• Arizona Game and Fish Department

“To conserve, enhance, and restore Arizona’s diverse wildlife resources and habitat through aggressive protection and management programs…” (Mission Statement)

• Forest Service Policy

“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)

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”

• 1964 Wilderness Act

“Management activities to maintain or restore fish and wildlife populations…shall include the use of motorized vehicles by the appropriate State agencies.”

• 1994 California Desert Protection Act

State versus Federal Authority

• States assert their authority under the 10th Amendment to the U.S. Constitution, the Police Powers:

“The powers not delegated to the United States…are reserved to the states…”

• Federal agencies assert their authority under four different Constitutional Clauses

-- Property: power to govern property

-- Treaty: power to engage in treaties

-- Commerce: power to regulate interstate commerce

-- Supremacy: federal law governs if there is conflict

Judicial Interpretation of the U.S. Supreme Court

• 1896 -- Geer v. Connecticut

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.”

• 1896 -- Geer v. Connecticut

• 1920 -- Missouri v. Holland

Upheld federal use of the Treaty Clause (the 1918 Migratory Bird Treaty Act) and Supremacy Clause that federal law supercedes conflicting state law

Judicial Interpretation of the U.S. Supreme Court

• 1896 -- Geer v. Connecticut

• 1920 -- Missouri v. Holland

• 1928 -- Hunt v. United States

Upheld federal use of Property Clause to protect public land from resident wildlife (deer on the Kaibab NF)

Judicial Interpretation of the U.S. Supreme Court

• 1896 -- Geer v. Connecticut

• 1920 -- Missouri v. Holland

• 1928 -- Hunt v. United States

• 1976 -- Kleppe v. New Mexico

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

Judicial Interpretation of the U.S. Supreme Court

• 1896 -- Geer v. Connecticut

• 1920 -- Missouri v. Holland

• 1928 -- Hunt v. United States

• 1976 -- Kleppe v. New Mexico

• 1979 -- Hughes v. Oklahoma

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.”

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

Topics covered in the IAFWA Agreement

• Fish and Wildlife research

• Facility development and habitat alteration

• Endangered and threatened species

• Fisheries management

• Wildlife management

• Visitor management

Establishes non-binding guidelines that “should serve as a framework for cooperation” between state and federal agencies

IAFWA Agreement

• Defines “indigenous” as “species of fish traditionally stocked before wilderness designation...if the species is likely to survive”

IAFWA Agreement

A Few Problems

• No plan for resolving conflicts and differences of opinion

• Vague language (“preserve the natural character,” “may be permitted,” “identified in the wilderness management plan,” “standard techniques of population sampling,” “mutual agreement”)

Status of the IAFWA Agreement

• November 2000 – reaffirmation by FS and BLM followed by formal review of successes and failures

• March 2002 – proposed revision by FS and BLM Fisheries Program leaders (DOA to wilderness)

• February 2003 – proposed addendum by FS,BLM, some states (DOA to IAFWA)

• Currently, unknown what will happen next or how known problems will be resolved

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

• Legislation – does not give state agencies sole authority for managing wildlife in wilderness; doesn’t resolve anything

• Supreme Court decisions (5) – clearly support federal involvement in wildlife management decisions and activities

• Science – clear and wide-ranging impacts to wilderness values from some wildlife management activities

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