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"In this primer on Wildlife Law, the authors have produced a text that is both easy to read and very interesting."
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Wildlife law is the body of legal rules and processes that have to do with wild things—with the interactions people have with wild things, and with the interactions among people themselves that relate to wild things. It is as simple and as wide ranging as that. The term "wild things," of course, 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 then 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), while 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, of course, 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're 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. Much law deals 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 (though not entirely accurately) 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 isn't 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 termed), 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—either because the animals are migratory, or because violators of laws themselves cross state boundaries, or because problems arise that states alone either cannot or will not address. While less expansive, federal law preempts inconsistent state law and thus takes priority in case of a conflict.
For the same reason that wildlife law at the federal level has been on the rise, so, too, wildlife law has 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 upon 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 American law are the many special government bodies that administer statutes and ordinances. Commonly termed 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 U.S. 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 is 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 Indians retain hunting and fishing rights are now the property of non-Indians. 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, of course, 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 we 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. This 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 they were gradually writing new law as they handed down decisions. They liked to say instead that they were merely "finding" the law, or that they 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, the common law was called "judge-made" law, to distinguish it from other forms of 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 so 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. So do the rules governing liability for the harms caused by, or to, wild animals. The rule of capture, which specifies the actions that a person must take to obtain a wild animal, is also a common law rule, although now modified by fish and game laws. The rules governing hunting easements, to cite a further example, are also based on common law principles.
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 this happens, the general common law rule remains in effect, as modified by the statute. To use an illustration: 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.
As one can see from this discussion, it can be difficult to figure out what law governs a particular legal problem. Wildlife law is no exception. Even to resolve a seemingly easy question, a person may need to consult a variety of legal sources. We can illustrate this complexity by considering who has the legal right to fish in a stream, and when. State fishing regulations obviously need to be looked at, to see what fish can be caught, when, and how. To decide who can enter a particular water body to fish, we need to ask about the ownership of the land beneath the water. If the underlying land is public, then some government agency likely regulates its use. If the land is private, we would need to inquire about public rights of access, which are governed by a complex array of state and federal laws. Very briefly, on this last issue of waterway access: Members of the public can enter a water body if access is authorized by either state or federal law. We therefore need to consult both bodies of law. Any waterway open under federal law must remain open to the public; state law cannot close it. On the other hand, states are free to open waterways that are not open under federal law. The latter possibility is not viewed as a conflict between federal and state law since a state is not attempting to close a waterway that federal law keeps public. Often, as we will see, access issues turn on whether the water body is "navigable," a complex issue in itself.
This topic of stream access illustrates one of the most perplexing types of legal conflict that can arise. 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. Or to generalize: law from the higher level of government is usually supreme in that it preempts the lower-level law. But this general arrangement is subject to exceptions. The chief exception is that Congress can authorize states to enact laws that would otherwise conflict with federal statutes. This exception comes into play in the instance of wildlife laws on federally owned lands. If it chose, the federal government could produce its own laws to govern hunting, fishing, and wildlife conservation on federal lands. These laws would displace state law. For various reasons, the federal government has not done so. Nor has it otherwise restricted the power of states to apply their wildlife laws on federal lands, except in national parks and other limited settings. As a result, people hunting on federal land are subject to state regulation.
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 "ultra-hazardous activity." In these states, the zoo is almost automatically liable when a dangerous animal injures a visitor, regardless how careful it's been. At the other end of the legal spectrum are states that grant zoos sovereign 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 zoo's behavior. In between are states that allow injured visitors to recover upon showing that the zoo has been negligent in some respect. The variation among states could hardly be larger.
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, or 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. This 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 isn't possible to predict how a court would resolve the dispute—and, in the end, it is the ability to make such a prediction that enables us to state confidently the "law."
When it isn't possible to predict a dispute's outcome, the law is said to be vague. Adding to this inevitable vagueness is the fact that state courts are empowered to change the common law so that it comports with today's circumstances and values. We need to be careful, then, in claiming confidently to know the law, especially when the leading judicial decisions are decades old. Although a court will always give weight to earlier precedents, no matter how old, the older the precedent, the less weight it is likely to receive. Thus to know the law, one needs to anticipate legal change. It is no surprise, really, when a court today replaces a judicial ruling from a hundred years ago with a more up-to-date legal understanding.
Excerpted from Wildlife Law by Eric T. Freyfogle, Dale D. Goble. Copyright © 2009 Island Press. Excerpted by permission of ISLAND PRESS.
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