State management of wildlife on federal refuges in Alaska has survived a court challenge from the Center for Biological Diversity, which has been trying to limit the hunting and trapping of bears and wolves.
The Ninth Circuit Court of Appeals in a Dec. 30 decision affirmed a low court ruling that concluded Congress was acting within its powers in 2017 when it voted to block Obama-era hunting restrictions ordered in Alaska’s 16 national wildlife refuges.
Federal officials acted in 2016 because they did not like the looks of state “predation control areas” where the Alaska Board of Game could authorize aerial shooting of wolves or bears or both by the Alaska Department of Fish and Game, or increase wolf and bear harvests by contracting with private trappers, issuing permits for same-day airborne hunting of wolves and bears by the public, or permitting the take of black or brown bears over bait or with the uses of snares.
To stop such actions, the U.S. Fish and Wildlife Service (USFWS), which manages the national refuges, banned those killing techniques on more than 70 million acres of refuge land in the 49th state. More than 75 percent of USFWS-managed lands are in Alaska.
The federal-state disagreement was as much or more about the philosophy of hunting and trapping as about kill levels.
As the USFWS noted in proposing its regulations, the “state of Alaska’s legal framework for managing wildlife is based on a different principle than the legal framework applicable to management of the National Wildlife Refuge system; it is based on the principle of sustained yield.”
Maximum sustained yield
The Alaska Constitution – approved three years before Congress voted to grant statehood to the Alaska Territory – contains a specific “sustained yield” section that stipulates “fish, forests, wildlife, grasslands, and all other replenishable resources belonging to the state shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses.”
State officials have for decades wrestled with how to deal with this requirement when managing predators and their prey. In a perfect world, it would be possible to maintain bears, wolves, moose, caribou, deer, Dall sheep, goats and other prey at sustained yield levels approaching their maximum, but the world is not perfect.
Wildlife populations cycle up and down, often at the whims of weather. When prey decline in ecosystems heavy in predators, predation can slow or at times stop their recovery for long periods of time.
The state has taken the view that the right thing to do in such situations is to remove significant numbers of predators to allow prey to bounce back before allowing predator populations to rebuild. The USFWS considers these fluctuations normal and prefers to let nature take its course.
As it argued in blocking state predation control efforts, its policy calls for managing for “historic conditions” such as the “‘composition, structure, and functioning of ecosystems resulting from natural processes that we believe, based on sound professional judgment, were present prior to substantial human-related changes to the landscape.’ In implementing this policy on refuges, we favor ‘management that restores or mimics natural ecosystem processes or functions to achieve refuge purposes(s).’ Additionally, under this policy, we ‘formulate refuge goals and objectives for population management by considering natural densities, social structures, and population dynamics at the refuge level’ and manage populations for ‘natural densities and levels of variation.'”
Mainly, though, federal officials didn’t like the looks of the wolf and harvest techniques – airborne shooting, hunting over bait and snaring – that horrified environmentalists and were distasteful to some hunters and conservationists as well.
But not to Rep. Don Young, Alaska, a long-time hunter and the state’s sole congressman. He went to work to get a House of Representatives vote to overturn the USFWS action, and with fellow, Alaska Republicans Sen. Lisa Murkowski and Sen. Dan Sullivan pushing in the Senate, Congress sent to President Donald Trump a Congressional Review Act resolution blocking the Interior regulations.
“‘Not only does this action undermine Alaska’s ability to manage fish and wildlife upon refuge lands,’ Young said, ‘it fundamentally destroys a cooperative relationship between Alaska and the federal government.'”
No it’s not
The Center for Biological Diversity, an environmental group, promptly filed suit, arguing that if there was any overreaching being done it was by Congress.
It argued that the Congressional Review Act and the joint resolution passed by the House and Senate in accordance with that act violated the separation-of-powers doctrine of the U.S. Constitution by interfering with the executive branch’s duty under the “Take Care Clause.”
As the appeals court ruling summarized, the Center argued that Congress was “preventing the Department of the Interior from implementing its constitutional duty to faithfully execute the laws by properly managing the federal wildlife refuge system.”
“The panel rejected the argument because Congress properly enacted the Joint Resolution, thereby validly amending Interior’s authority to administer national wildlife refuges in Alaska, and Congress, accordingly, did not prevent the President from exercising his constitutional duty to faithfully execute the laws,” the court’s statement said.
“The panel concluded that because the Joint Resolution did not violate the Take Care Clause, CBD’s complaint failed to state a claim that was plausible on its face.”
In its ruling, the Ninth Circuit went out of its way to offer its opinion on the Congressional Review Act.
Citing James Madison and The Federalist papers, it ends it opinions with the declaration that “Congress’s efforts to exercise oversight of federal administrative agencies by means of the CRA are consistent with the ‘structure of this government, and the distribution of this mass of power among its constituent parts. Congress can therefore use the streamlined procedure in the CRA to disapprove federal regulations without offending the Take Care Clause, and Congress has validly deprived us (the courts) of jurisdiction to consider claims that it violated the CRA’s statutory requirements.”
No real resolution
No one expects the ruling to have any effect on the political battles over predator management that have ebbed and flowed in Alaska since Statehood. One of the earliest acts of the state government was to put an end to long-running federal wolf control programs.
Among other things, the state banned the most effective of predator-control weapons – poison. An indiscriminate killer, it removed all sorts of predators: wolves, bears, coyotes, wolverines, eagles and more.
Poison remains banned in Alaska to this day, but the thinking on predation has shifted from what it was in the 1960s when ecologists generally believed that it was “compensatory,” meaning the predators only removed the portion of a prey population that would have died of natural causes one way or another anyway.
A variety of studies have since found that predation can add to the deaths caused by other forms of natural predation and serve to depress prey populations, or keep populations depressed after winters that cause significant deaths due to starvation.
Big questions remain, however, as to where and when that is occurring as do issues as to how big prey populations should be allowed to grow. That ties directly into the carrying capacity of Alaska’s often marginal wildlife habitat.
With the issues complicated and the emotions hot – some wolf lovers consider wolf hunting akin to murder – it’s possible the battles over predator control will ever end.