This was managed somewhat like a wildlife preserve, but included private lands as well. For example, private lands in England had to retain adequate foliage for wildlife forage and cover. All forestland was subject to an "easement for the benefit of wildlife" during the winter months so that the wildlife could be fed if necessary.
If the wildlife increased such that they required the use of all the land for forage, the herdsman was out of luck, rather than the wildlife. As a form of compromise by rulers, domestic animals were often allowed to run over public forest ground. A third form of wildlife management that evolved in England was stocking of animals to increase populations and thus the yield of animals. Early American colonial wildlife laws were not so much based on aristocracy as they were on survival.
Initially, free taking of any and all wildlife was the order of the day, because of the incredible wealth of species found in the New World. Free taking applied even to private lands, such that hunters would pursue their game at will. Undeveloped private lands were open by law to wildlife takers, and land could only be excluded by fencing or developing, such as for agriculture. Managing wildlife in early America began with regulating the taking of wildlife near the Atlantic seaboard.
Many of these wildlife laws sought to maintain maximum sustained yield of wildlife while preventing their depletion. In the middle and southern colonies, status privileges were afforded under wildlife laws in a manner similar to the" qualification" statutes of England. Under such laws, slaves and Indians were often not allowed to hunt.
Enforcement of wildlife laws in colonial times was most difficult Poachers were hard to find or catch or limits on numbers of game that could be taken, or bag limits, were ignored. The more effective restrictions were in the market place, by illegalizing the sale of certain animals.
Bounties were used as an attempt to exterminate animals that became a threat to agriculture. Bounty laws assured decimation of nuisance animals. This practice became a popular local practice in various regions, and local governments had to become more and more creative to keep up with the bounty hunters' ingenious methods developed for presenting an animal for bounty more than once.
Wildlife populations declined in North America through the nineteenth century. From herds of buffalo on the plains, to the beaver and the passenger pigeon, certain species of wildlife were decimated. This occurred for several reasons, not the least of which was the lack of enforcement of wildlife laws.
The group that came to the rescue of American wildlife initially was the sportshunters. Hunters had an interest in halting the decline in wildlife populations, and their efforts contributed to passage of laws for protection of wildlife.
Laws began to restrict hunting to those who acquired licenses to do so, and funding for wildlife agencies began to come directly from hunting and fishing license fees. Game wardens could then be paid with those funds to enforce wildlife laws. In addition, sportsmen could argue effectively against market hunters because domesticated animals could well supply the food needs of the population.
Fees and taxes from sportsmen also fund some of the programs created under federal laws for conservation and protection of wildlife. International treaties impact state management of wildlife to the extent that federal legislation implementing the treaty protects or otherwise affects species or types of species of wildlife within the states. Such federal laws usually complement or enhance conservation efforts by state agencies. International wildlife treaties have developed in large part to aid in the management and protection of specific severely depleted species of wildlife in their international ranges.
To become enforceable within a nation, treaties must be implemented by national legislation within that country. There are dozens of international environmental and wildlife treaties to which the U.
Nevertheless, international enforcement of treaties is difficult because nonsignatory nations are not bound by them. Signatories are bound only to the extent that they have enacted their own implementing legislation, and to the extent that other nations try to force their compliance.
Further, if a nation lodges a formal protest against a requirement, it can exclude itself from enforcement. The statutes described below have specific impact on state wildlife laws, which often refer directly to federal laws.
The Endangered Species Act of , as it currently stands,38 is the broadest federal statute ever enacted for protection of wildlife species. The Act protects both animal and plant species that are "endangered," which term is defined under the Act as a species determined to be in danger of extinction throughout all or a significant portion of its range.
Under Sec. A "taking" is broadly defined: to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Listing a species as threatened or endangered under the Act may be accomplished under Sec. Concurrent designation proved to be onerous to the agencies because of the difficulty of designating critical habitat. Linking the listing procedure to critical habitat designation and to economic considerations halted species listing almost entirely.
Approximately 2, species proposed for listing in were withdrawn. During the first year of the Reagan Presidency, no species were added to the protected lists. The amendments to the ESA changed the concurrent critical habitat designation to the "maximum extent prudent and determinable.
The affirmative requirement on the Secretaries to prepare recovery plans for the survival of the listed species are also found in Sec. Exceptions to the Act also exist An exception to the prohibitions against taking of endangered or threatened species is provided in Sec. Most states expressly adopt the federal list of protected species, and provide their own list, and many have modeled their state statutes after the federal ESA.
The Lacey Act Amendments of provide broad federal criminal enforcement of federal, state, foreign and Native American wildlife laws.
The Act makes it a federal crime for any person to acquire or sell any fish or wildlife taken in violation of state, federal or tribal law. See Chapter 3 for a complete discussion of the Lacey Act. The Act provides that nothing therein prevents the states from making or enforcing laws or regulations that are consistent with the Conventions or the Act, or that give further protection to migratory birds, their parts, nests or eggs.
Virtually every state fish and wildlife code contains assent provisions to the Federal Aid in Wildlife and Sportfish Restoration Acts. Better known as the Pittman-Robertson Act, the Federal Aid in Wildlife Restoration Act was enacted in to consistently fund state wildlife programs.
It provides federal assistance for the restoration, maintenance, and acquisition of wildlife habitat, management of wildlife resources and areas, hunter education programs, introduction of wildlife into suitable habitat, and for surveys of and research into wildlife management problems.
Also provided by the Act was the "federal restoration to wildlife fund," comprised exclusively of excise taxes on firearms, other weapons and ammunition. Initially the Pittman-Robertson Act resulted in a significant amount of federal control over state wildlife restoration projects because it placed restrictions on types of projects funded and set certain standards for states to meet in order to receive funds.
In past decades, however, a series of amendments have increased the flexibility of the states in using Pittman-Robertson funds. The most significant amendments were passed in The second allowed states to submit a "comprehensive fish and wildlife management resource plan" instead of a specific restoration project.
The period of the plan submitted must be at least five years, and must "insure the perpetuation of these resources for the economic, scientific, and recreation enrichment of the people," The Federal Aid in Sportfish Restoration Act, commonly called the Dingell-Johnson Act, has nearly the same provisions for federal aid to states for marine and freshwater fish projects, and boating facilities and aquatic resources education.
The Marine Mammal Protection Act MMP A was originally enacted in in response to the rapid depredation of marine mammal species, including whales, dolphins, seals, sea otters, manatees, walruses, and polar bears. However, the only instance of attempted use of this waiver was in when the management of the Pacific walrus was returned to the State of Alaska. Thus, state regulation of marine mammal wildlife has been relinquished to the federal government in all instances.
States attempting to manage wildlife have run up against arguments that their actions conflict variously with the U. The extent of the states' right to exercise its police power under the Tenth Amendment to the Constitution has also been challenged. Federal preemption has been tested with regard to state power to manage wildlife. As early as , the U. Supreme Court in Missouri v. Holland ,78 found that a federal game warden's enforcement of the Migratory Bird Treaty Act was not an unconstitutional invasion of the Tenth Amendment right of police power of the state.
Udall, 79 the Court found that, under the federal property power, the federal government could kill deer on a national park within New Mexico without a state permit without violating the state's right to manage its own wildlife.
The states' right to affect trade in wildlife and wildlife parts has also brought up consideration of state legislation's impact on interstate commerce and possible violations of the Commerce Clause of the U. In the case of Geer v. Connecticut, 80 the U. Supreme Court found that states have "ownership" of the wildlife within their borders, and that a state has a duty to preserve for its people a valuable food supply. Thus the Commerce Clause was not violated by a Connecticut Statute which forbade possession of birds taken within the state for the purpose of transporting them out of state.
However, the property interest of the states in wildlife has limitations. In overruling Geer almost one hundred years later, the Supreme Court in Hughes v. Oklahoma ,81 found that the Commerce Clause had been violated by enforcement of an Oklahoma law forbidding the transporting of minnows raised in Oklahoma to a point outside of the state. The Court found that a state may protect its wildlife only in ways consistent with our nation as one economic unit, and that discrimination against interstate commerce is not allowable when equally nondiscriminatory alternative conservation measures are available.
Taylor ,82 wherein Maine's ban on importation of golden shiner fish was upheld because of Maine's legitimate local purpose in guarding against environmental risks of non-native parasites and disruption of ecology. Thus, a state's wildlife laws that discriminate against or restrict commerce may be allowed if they serve a legitimate state interest, such as protection of the environment, and there are no reasonable alternatives to the action mandated by the statute.
Despite these limitations, by and large states still retain the lion's share of the responsibility for the management and protection of the wildlife species that reside in or migrate through, their borders. Current state wildlife laws are almost infinite in their variety of treatment and organization of wildlife management and protection provisions.
In attempting to summarize the wildlife laws of each state of the United States, it was found that state wildlife laws generally fit into ten standard categories that can be used to achieve a uniformity of presentation.
These are: policy; definitions; agencies; protected species; exceptions to protection; hunting, fishing and trapping provisions; animal damage control; enforcement; habitat protection; and Native American provisions.
As noted in Chapter One there are many topics within the various codes that had to be excluded from the summaries within this Handbook.
However, some of the many interesting topics which appear in codes deserve some discussion. The following cursory discussion of assorted topics within state wildlife laws is organized according to the ten broad categories above.
Where significant, trends and new developments seen in states are mentioned. The reader is referred to Chapter 4,83 which discusses a myriad of recommendations regarding each of these topics and provides an extensive treatment of favorable and creative legislation for states to consider. Policy statements by legislatures of the states often speak to the desires of the people to see a program brought into being, a policy enforced, or a trend reversed in loss of wildlife.
States such as California have policy statements at the beginning of provisions for almost every fish and wildlife program. Other states have no policy statements. Such statements give a more clear idea of the relevant and pressing issues and concerns of the citizenry of a state. Definitions of various species of fish and wildlife, and of other related wildlife terms often differ between states.
The definition of "wildlife," for example, can be as broad as Alaska's, where invertebrates and even insects are included, or it may not be defined as in New Mexico wherein the result is that reptiles and amphibians have no protection under the fish and game code.
Definitions of endangered and threatened species tend to be quite consistent between states, and are usually based upon the definitions in the federal Endangered Species Act Interesting differences exist between states' definitions of non-game and game wildlife and non-game and game fish. Relevant wildlife definitions for each of the states non-wildlife definitions that exist in fish and wildlife codes are not included can be found in the Appendices of this Handbook.
Agency Names: There appears to be a growing trend for state legislatures to rename state agencies that were previously termed "Game and Fish Department" to either Wildlife Department, or Fish and Wildlife Department This appears at first blush to be a somewhat innocuous change, however, it does allow for the scope of authority of these departments to legitimately extend to management of wildlife other than game wildlife that is traditionally hunted, fished or trapped.
Departments are having to take on this responsibility of non-game wildlife management, whether or not they are fully funded or given the name to match these duties. Department Organization: Most states have a fish and wildlife agency separate from other environmental and natural resources departments.
Such agencies usually have a director who is responsible for management of the fish and wildlife resources of the state. Often the director is responsible to a commission made up of appointees.
Several states, however, merely have a department of natural resources or environment, into which the fish and wildlife management responsibilities fall. Often such a department is headed by a secretary who has oversight and primary responsibility for fish and wildlife resource management. Department Director and Commissioner Qualifications: Three tables in Chapter 5 outline the various methods of appointment and required qualifications, if any, of the director, commissioner, and commission members of each of the states.
Many states have bestowed the authority on the governor to appoint the fish and wildlife department directors and commissioners, who often to serve at the pleasure of the governor as well. This can lead to a politicized commission and department, which may lead to changes in policies with changes in administration. An awkward situation may also arise if a governor appointed commissioner must oversee a nonpolitical director and department, which can lead to lack of coordination and effectiveness.
However, there appears to be a trend toward requirement of various qualifications for department directors and especially for the several commissioners. Qualification requirements for holding office can vary from none to a requirement of a background in wildlife conservation, to affiliation with a ranching or agricultural organization or association, to a required number of years in wildlife management practice.
Agency Funding Sources: Sources of funding for fish and wildlife departments are becoming increasingly important, with belt-tightening by legislatures in almost all states concurrent with increased responsibility of agencies for non-game wildlife and habitat management Historically fish and wildlife agencies have been funded through fees derived from sale of hunting, fishing and trapping licenses, fees and permits.
State agencies must become more and more creative in seeking out new sources of funding other than license fees and general legislative appropriations. The " Agency Funding Sources" table in Chapter 5 lists most of the creative funds and sources of funding for each of the states. Other useful methods of acquiring funds, and which mayor may not feed directly into the general fund of the department, include sale of various wildlife stamps and related artwork. Wildlife stamps can be mandatory for taking a certain type of species, or they can be purchased on a voluntary basis.
Examples of stamps are habitat protection stamps, duck stamps, and migratory waterfowl stamps. Artwork for various stamps may also be used for sale of posters, prints and other products. Posters and artwork other than stamp-related are also provided for in many states. One unique and successful form of funding for a fish and wildlife agency is found in the Missouri State Constitution. Under Article IV of the constitution, it is declared to be the policy of the people to preserve and protect wildlife, and that a separate severance tax is therefore issued for funding the department's activities see Sample Statutes, Chapter 7, for full text of provision.
Funds can also be obtained from fines and penalties collected for violations of the fish and wildlife laws. Some states provide for division of such monies collected between the department and the county in which the fines were imposed, thus enhancing the county's motivation for consistent imposition of adequate penalties. Often funding is provided directly through state legislative appropriation, for specific programs such as habitat acquisition, or as general annual appropriations.
Trends in state legislatures are toward more creative funding sources, and for funding aimed at specific programs or policy directives. Advisory Boards, Councils and Committees: Many state legislatures have made provisions within fish and wildlife departments for a variety of advisory boards, councils and committees. These various councils are outlined in the table titled " Agency Advisory Councils," wherein a brief description of the roles of each committee are given.
Advisory councils usually review and make recommendations to the department, directory or commission regarding a specific topic such as endangered and threatened species or habitat protection. States tend to require that members be qualified in the field for which the committee was created, and some states use many such councils to assist with the responsibilities of the department and commission.
Volunteer programs: Volunteer programs have been developed as a creative way to assist with the problem of adequate funding for state fish and wildlife agencies, as well as a way to enhance citizen awareness and participation in wildlife management, conservation and protection.
Some states allow volunteers to train for and become commissioned as temporary state game wardens. Provisions are even made, in Louisiana for example, for commissioning of volunteer retired game wardens. Other states may provide for a hot line for citizens to call regarding observed or potential fish and wildlife law violations: Reward programs can provide monetary rewards to citizens upon conviction of the violator.
Chapter 4 contains examples of excellent volunteer programs, as does the table "Rewards for Assisting with Enforcement Against Violators" in Chapter 5.
Non-game Wildlife Provisions: Almost every state makes provision in its game and fish code for protection of non-game, or non-hunted wildlife species. States are more often passing legislation for protection of such species, and protections usually include prohibitions against taking, possession, selling, buying or offering for sale such species.
Certain states make specific provisions spelling out protection for a species of particular concern, such as the mountain lion or panther, or the grizzly bear. Endangered and Threatened Species: Virtually every state except West Virginia has some statutory provision for protection of species determined to be either threatened or endangered under the federal Endangered Species Act in addition to their own list. Many provide for public notice and a hearing before listing or de-listing, and other provisions are often made for citizen participation in the listing process.
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