While many people believe states own wildlife, legal scholars say laws give federal officials significant authority to weigh in on wildlife distribution and numbers on lands owned by all Americans. That power is derived from the Constitution and various laws passed by Congress, including the Endangered Species Act and more obscure legislation. (Diana Robinson/Flickr Creative Commons)

When the federal government finally removes Endangered Species Act protections from Yellowstone-area grizzlies, an established population of grizzly bears in the Wyoming Range, well south of the national park boundary, could be hunted, perhaps even extirpated.

One reason that grizzlies face a grim future there is a lack of “social tolerance,” state and federal officials have said. Sixty thousand grazing sheep in the Wyoming Range — easy pickings for grizzly bears — were among the factors that weighed on the social-tolerance scale when the U.S. Fish and Wildlife Service drew the boundary that guarantees where grizzlies will persist.

But some critics of federal and Wyoming plans for grizzly bears wonder whose yardstick measures social tolerance. The grizzlies’ home in the Wyoming Range is almost exclusively on land owned by all Americans. Does a small group — those involved in the state livestock industry — get to decide the bear’s fate there?

Federal authority over wildlife is stated in court precedents and, of course, exemplified in the Endangered Species Act itself. But it is in some sense a sleeping authority, awakened and exercised only on certain occasions.

Already there is considerable discussion, just below the public radar, of the fundamental questions at stake: Who gets to decide what animals live on federal property and how many there should be? Who has authority over, and is responsible for, managing wild animals? Who, after all, owns wildlife?

Wyoming lawmakers codified their position on that question in the laws that lay out the authority of the Wyoming Game and Fish Department and commission; “For the purpose of this act,” they wrote, “all wildlife in Wyoming is the property of the state.”

Wyoming might wish things were so simple, and it has gone to court to cement such beliefs. But a federal panel in one case that came out of Wyoming said the laws are not so clear. “Once again,” judges bemoaned, in 2002, “a federal court is called upon to unravel a congressionally-legislated Federal-State standoff.”

Animals that roam land owned by all Americans

In Wyoming where 48 percent of the land, some 30 million acres, is owned by the federal government, the state’s legislative proclamation that it owns wildlife  has sweeping ramifications.

The state’s position stems from the North American Model of Wildlife Management, said Jerimiah Rieman, policy advisor to Gov. Matt Mead. The model is a doctrine that has emerged from laws, court precedents and tradition.

“The basic principle is that we own that wildlife and we manage it in trust … for [Wyoming’s] citizens, and more broadly for the U.S. and the world,” Rieman said.

Wyoming and other Western states have relied heavily on the 10th Amendment, which gives states a free hand in matters where the federal government hasn’t claimed or been given jurisdiction. In many aspects of wildlife management, states have been the first to establish laws and rules and so have assumed much authority over wildlife.

Despite what’s known as the public trust doctrine, which burdens public officials with the responsibility of representing all citizens, critics say many interests are left out when it comes to wildlife. “If you look at the Wyoming Game and Fish Commission,” said Andrea Santarsiere, attorney with the Center for Biological Diversity, “there’s a lot of commissioners that have their own special interest. They’re not going to allow bears where sheep owners are grazing on public lands.”

“Certain special interests,” added Louisa Willcox, a Montana resident and long-term advocate for wildlife, “have come to dominate the practice of wildlife management,” and rarely represent what she calls “the broader public interest.”

Grizzly bear activist and former government scientist David Mattson points critically at the traditional wildlife management framework. “By design, it disenfranchises the vast majority of Americans and, because of transactional financial dependencies, overtly caters to a small number of special interest groups,” he wrote on Willcox’s Grizzly Times website.

The proposed Yellowstone ecosystem bear management boundaries exclude grizzlies in the northern Wyoming Range, leaving them bereft of protection afforded by what’s known as the Demographic Monitoring Area, where distribution and numbers would be carefully monitored. When the occupied habitat was excluded, federal officials said a lack of social tolerance was one reason not to protect a population there. (Wyoming Game and Fish Department)

Under the public trust doctrine, “The state must act as a trustee for wildlife for the public, not just for hunters, not just for the [agriculture] industry,” Santarsiere said.  “When the state doesn’t take on that role, and instead caters to special interest, it is violating that fundamental [public trust] principle.”

The reason why Wyoming Range grizzlies could end up being hunted dates back to the time when the U.S. Fish and Wildlife Service first drew a line around Yellowstone National Park, to define where grizzly bears would persist. The line defines what’s known as the Demographic Monitoring Area in which grizzly numbers and distribution will be carefully monitored by state and federal authorities. With that line, the agency excluded the northern part of the Wyoming Range, home to an established population of the bears. When the federal government removes Endangered Species Act protections from Yellowstone-area grizzlies as expected, that Wyoming Range population falling outside the line could be extirpated without federal repercussions.

Groups like Willcox’s and Santarsiere’s are determined to prevent that.

Wyoming Game and Fish Commission makeup

The Wyoming Game and Fish Commission is broadly based and follows the wishes of a variety of citizens, its chairwoman T. Carrie Little says. “The board today … is made up of a lawyer, a retired Highway Patrol [zone commander], a conservation consultant, a rancher. I’m an insurance agent — my family has a ranch. We’ve got a contractor [who has a ranch] and a hotel owner and businessman.”

Commissioner Richard Klouda, as a retired Highway Patrol zone commander, might be pigeonholed as one who embraces firearms and their use for hunting. But he quit shooting wildlife some 25 years ago. “I don’t eat as much meat as I used to,” he said. Yet he applies annually for game licenses, makes donations to the Wounded Warrior Project and goes to hunting camp with his buddies. “But I don’t participate in it,” he said.

Public comment is paramount in commission decisions, he said. “We have all the public comment available,” he said. Game and Fish staff are very careful not to bring proposals to the commission that have generated a lot of public opposition, he added.

WyoFile related: Wyoming says its plan ensures bears forever

“At least in Wyoming, the system works,” Klouda said. “Almost 100 percent of the time, the decision the commission makes … based on recommendations from the department is a good decision. I feel very confident about that.”

Little sees outfitters as worthy, not conflicted, potential commissioners. “While they obviously support hunting, they would certainly support the care and the numbers available of wildlife,” she said. “Their business would end if wildlife were decimated.

While national forest managers may work toward having varied species across their landscapes, often that same wildlife needs land outside forest boundaries to survive an entire calendar year, Rieman said. That means they use private property — open space owned by ranchers.

Little, Klouda and Rieman all cited the importance of the support of ranchers and the open space they steward. “They are very sensitive to the wildlife they manage on their private land,” Klouda said.

Little’s father floated sticks on the surface of stock water tanks “so little birds can land on them and get a drink,” she said. In winter, “a rancher is out there making sure water is open for, yes, wildlife also,” she said. “If you don’t think the deer and antelope come down and feed [on private land], you’re crazy.”

In contrast, some wildlife advocates are single-species minded, she said.

“You take a group who is very supportive of wolves,” she said. “I envisioned they would be supportive of all wildlife. That isn’t what I found in my 6 years on the commission. They’re all about wolves, but they really don’t give a rat’s rear end about birds,” and other species.

Legislature, not Commission, has the clout

Ballyhoo regarding the makeup or impartiality of the commission may be only that when it comes to controversial species like wolves. The Wyoming Legislature often exercises control over the Game and Fish Commission, and has passed a wolf law that constricts the commission’s authority.

Wyoming also passed a bighorn sheep law that codifies a wildlife management plan that heavily influences where bighorn sheep will be a priority, and where domestic grazers will hold sway. And under another law, the Wyoming Livestock Board gets to approve whether and where bison are deemed “wildlife.” (Wyoming lawmakers also list “protected” animals like lynx and black-footed ferrets.)

Lawmakers explicitly rejected an attempt to reframe the Wyoming Game and Fish Commission responsibilities and require it to manage wildlife as a public trust. In 2001 a Senate committee “indefinitely postponed” a bill that would have plainly stated commission obligations as trustees under the public trust doctrine.

State laws also designate some wildlife as predators, allowing people to kill them by any means at any time and without a license. Among those so designated are coyotes, jackrabbits, porcupines, raccoons, red foxes and skunks. Wolves are legally deemed predators across more than 80 percent of the state, a designation that’s being contested in court.

“I’m not one of those people who believes if you just left it all alone it would just manage itself,” chairwoman Little said of the natural world. “If you don’t manage coyotes, grizzly bears, ravens — all those things that are predatory types of wildlife — it’s not just putting a rancher out of business. There would not be other wildlife either. History shows us what happens. The powerful squash or kill. They do that naturally and something just disappears.”

Joe Bohne, right and Armond Acri, draw lines as Game and Fish mapmaker Nyssa Whitford directs, during a meeting of the Jackson area sage grouse committee. The mapping was part of a successful Wyoming Core-Area Strategy that precluded the federal government in 2015 from listing the bird as threatened or endangered. (Angus M. Thuermer Jr./WyoFile)

Erik Molvar, the new director of Western Watersheds Project, said legally classifying some wildlife as predators “is the antithesis of sound wildlife management.”

“Nobody is managing the killing,” he said. “That’s a clear abdication of government responsibility and a violation of the public trust.” While Klouda argues that coyote killing is a boon to imperiled greater sage grouse, Molvar disagrees. Instead, coyote killing boosts the population of skunks and foxes, which eat more grouse eggs than do coyotes, he said.

Wyoming’s trust obligations extend to fish, too, Molvar said. “If you go out to the Wind River Basin all streams that come out of the mountains are completely dewatered for irrigation. We’re killing entire waterways, with complete disregard for aquatic ecosystems.”

Courts: Fed’s power “painfully apparent”

For all Wyoming’s laws, commissions and regulations, courts say state authority over wildlife is not supreme. In 1979 when the U.S. Supreme Court ruled in a case known as Hughes v Oklahoma, the court handed the federal government a new standard under which it could operate. The court rejected as “19th Century legal fiction” the concept of state ownership of wildlife.

With the decision, “the last precedential impediment to the federal government’s wildlife management authority was removed,” federal wilderness researcher Peter Landres and others wrote in a 2001 paper titled The Wilderness Act and Fish Stocking.

Ironically, Wyoming helped cement state ownership as an outdated “legal fiction” when Gov. Jim Geringer sued the federal government over a conflict that began in 1997. Wyoming wanted to vaccinate elk on the National Elk Refuge and claimed that the 10th Amendment gave it a sovereign right to manage wildlife within its borders. After “once again” being “called upon to unravel a congressionally-legislated Federal-State standoff,” the appellate court said it was not so.

The federal government has the right to manage its lands through the property clause of Article IV of the U.S. Constitution, the court said in its 2002 decision. “In our view, the ‘complete power’ that Congress has over public lands necessarily includes the power to regulate and protect the wildlife living there,” the court said. “We believe the point painfully apparent that the Tenth Amendment does not reserve to the State of Wyoming the right to manage wildlife, or more specifically vaccinate elk, on the NER, regardless of the circumstances.”

The concern that led Geringer, and the Game and Fish Commission, to want to vaccinate elk was, of course, to ward off brucellosis that could be transmitted to cattle herds.

Wyoming avoided another potential conflict with the federal government when it acted to conserve greater sage grouse well before the imperiled bird became the focus of a nationwide endangered species debate. Wary of potential federal control of grouse and seeking to preserve the bird for its own sake, Wyoming’s Core Area Strategy precluded the need for direct federal involvement.

Stockmen feel the pain

Stockmen and women who lose cattle and sheep to carnivorous wildlife — particularly wolves and bears — would laugh at the proposition that they control where such wildlife roams, except they don’t see livestock losses as a laughing matter. Wyoming Game and Fish Department pays hundreds of thousands of dollars in damage claims to ranch owners annually for stock killed by trophy or game animals.

As an example, take Game and Fish Department FY ’15 payments for wolf losses in the Cody and Pinedale regions. Those are the largest agricultural communities closest to predator-protected Yellowstone and Grand Teton national parks. That fiscal year, Game and Fish paid $457,516 for losses to grizzly bears and $247,009 for stock confirmed killed by wolves.

Near Union Pass, just across the Green River valley from the northern Wyoming Range where grizzly bears are socially unacceptable, a herder reportedly quit his family’s sheep operation following a lease buyout by conservationists. The operation had been troubled by predation and a grizzly had attacked a shepherd. Federal land managers sought increasing requirements, like corralling sheep at night and making shepherds carry bear spray.

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Wyoming Game and Fish Department officials say they’re expanding social tolerance of grizzly bears through various education programs. Also, if a stock grower knows his neighborhood can be protected from predators, he or she might become more tolerant of predators elsewhere.

Does a Wyoming shepherd have the influence to decide that grizzly bears should not be on federal lands where he grazes a flock?

“The short answer is he doesn’t,” said Sandra Zellmer, professor at the Nebraska College of Law, University of Nebraska—Lincoln. Her experience includes a stint as a trial attorney in the Environment and Natural Resources Division of the U.S. Department of Justice, so she has a perspective on federal workers’ understandings of the system. Too often, they are ignorant of their authority and parrot states ownership claims, she says. “It’s kind of remarkable,” she said, “that you hear that so often from federal employees on the ground that are misinformed.”

She’ll reach back to the Constitution to buttress her position and detail myriad laws and regulations as well. Among federal authorities, there’s the commerce clause of Article I. “As long as there some sort of nexus to interstate commerce, Congress has power to act,” Zellmer said.

The treaty clause in Article II also allows the government to act to enforce agreements it has made with other countries. The Migratory Bird Treaty Act is an example of a law that grows from an international treaty.

Further, the Constitution’s property clause in Article IV gives the federal government the authority to protect its own property — including its 30 million acres in Wyoming in which all Americans have an interest. The U.S. Supreme Court in 1976 made it clear that principle applies to managing wildlife on those lands in a case known as Kleppe v New Mexico. Said Zellmer, “If the wildlife in question is integral to the federal public lands, then it comes within the federal property clause as federal property.”

Finally, the supremacy clause, under which federal rights trump states’, can be the ultimate decider, Zellmer said.

A coalition of Native American tribes says members have not been consulted appropriately about grizzly bear delisting around Yellowstone. GOAL coalition co-founder R. Bear Stands Last created this icon — in the pattern and color of a radiation warning sign — to signify the potential plight of the grizzly. Removing federal protections would open habitat up to mining, the tribal coalition says. (GOAL/R. Bear Stands Last)

In turn, these federal authorities have spawned numerous laws that weigh on wildlife management. They range from the Endangered Species Act to the National Wildlife Refuge System Administration Management Act, to the Wild Free-Roaming Horses and Burros Act to the Federal Land Policy Management Act. Another, the National Forest Management Act, says that the Forest Service shall provide for a diversity of species. Rules and regulations further that aim, including requiring ecosystem integrity supporting “the persistence of most native species.” All these trickle down to federal land management plans, through which the laws are supposed to be administered.

Nevertheless, Zellmer and others say, states still have a sovereign interest in wildlife — interest in and duty to the wellbeing of its citizens. But the point is, she says, “That’s not ownership and it’s not exclusive.”

Not to make the grizzly bear issue more complex than necessary, but the Yellowstone grizzly’s fate has drawn the keen interest of a coalition of Native American tribes. They complain they have not been consulted as required, and hold that the grizzly is sacred to many of their cultures. At a time when tribes are finding a voice and their influence is growing on the national scene in places like Standing Rock, their involvement in grizzly bear affairs brings yet another claim to a crowded table.

Social tolerance

For Rieman, advising Gov. Mead on policy, the wishes of a lone herder are not what drive decisions.I would suggest it’s broader than one shepherd,” he said.What are the social tolerances for a community at large? Does it mean we should have grizzly bears everywhere in Wyoming or more broadly … in Colorado?” Out-of-staters might want grizzlies in the Wyoming Range, but “they won’t accept them in their own back yard.”

To manage in trust means it is the responsibility of a state to ensure the viability of a species, he said. “It doesn’t mean [the animals] exist everywhere.”

“There are going to be areas where … public opportunities for viewing wildlife are going to be higher,” Rieman said. “There are other areas where perhaps agricultural interest and … human safety and recreation — perhaps those have a higher [priority] in that landscape.”

Wyoming Game and Fish Department works with landowners who have conflicts with grizzly bears. Social tolerance of grizzlies is one parameter used to determine where they will persist after federal protections are lifted. But some wonder whether that social factor is an appropriate yardstick and who gets to define it. (Wyoming Game and Fish)

Little, as chairwoman of the Game and Fish Commission, has a hard time seeing the relevance of some viewpoints. “Imagine someone sitting in Manhattan and she looks over at her little white groomed poodle sitting next to her on the couch and somebody says they’re killing wolf puppies or coyote puppies in Wyoming. How does that person, who has never seen Wyoming, understand and make an informed decision?

“That lady in Manhattan can’t solve the homeless crisis or the [problem of] rats in the sewer,” Little said. Although those aren’t necessarily federal problems, the commissioner said her opinions on solutions to New York woes would be suspect. “Maybe I shouldn’t make that decision. Maybe I’m not informed enough.”

Nevertheless, many believe social tolerance may not be legal justification when declaring grizzlies are “recovered” under the Endangered Species Act but shouldn’t be guaranteed a place in the northern Wyoming Range. ESA recovery criteria “are entirely based upon biological criteria, and rightly so,” wrote Lance Craighead, a biologist with the Craighead Institute.  “This language, particularly the phrase ‘socially acceptable’ has no basis in law as a recovery criterion, and we feel that it interjects a significant element of political bias into the recovery process,” he and colleagues told the U.S. Fish and Wildlife Service.

“The ESA has very specific criteria for delisting,” professor Zellmer said. “Social acceptability is not one of them.”

 

This story is the last installment of a six-topic series addressing issues of importance to Wyoming, sponsored by the Wyoming Humanities Council as part of the Pulitzer Prizes Centennial Campfires Initiative, a joint venture of the Pulitzer Prizes Board and the Federation of State Humanities Councils in celebration of the 2016 centennial of the Prizes — Ed.

Angus M. Thuermer Jr.

Angus M. Thuermer Jr. is the natural resources reporter for WyoFile. He is a veteran Wyoming reporter and editor with more than 35 years experience in Wyoming. Contact him at angus@wyofile.com or (307)...

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  1. Wonderfully detailed research and excellent writing join in an unusually informative and entertaining story. Thanks.

  2. I had written to Scott Talbott, Director of Wyoming Game and Fish, and all six commissioners about the delisting of grizzlies, asking why delisting was being considered when their own publication had cited the loss of white pine as a stress on the survival of grizzlies. Mr. Talbott was gracious enough to reply, and even though I don’t agree with his response, I very much appreciated that he addressed my concerns. A single member of the Game and Fish commission responded, with a single sentence: “Grizzlies are highly adaptable.” I don’t know if he couldn’t be bothered to cite a reference in support of that statement, or if he had no references to support it. In any case, I am glad to know that there is recognition that the wildlife are not exclusive property of the residents of Wyoming. As far as Ms. Little’s condescending comment about a socialite in New York sitting on her couch with a poodle, my family has spent at least a week in the mountains of Wyoming with our horses for 18 consecutive years. We have been to Yellowstone several times, and have been lucky enough to observe wolves feeding upon an elk kill. My husband is a hunter, and we have mounts (white tail deer) on our walls. The decision regarding Wyoming wildlife should be made with the common good in mind, and not just for hunters, outfitters, and those who run livestock on public lands at below market rents. Thank you for this very informative article.

  3. Even before the Wyoming Game and Fish Department reacted proactively to conserve sage grouse ahead of a possible federal listing, it joined 10 other western state wildlife agencies to develop state black-tailed prairie dog management plans to prevent the need for listing. In fact, the Wyoming Game and Fish Department was so committed to this premise that it allowed me, as their Nongame Mammal Biologist, to serve a two-year sabbatical to lead the successful interstate effort. Prairie dogs were not listed. They may not be a glamorous species, especially to ranchers, but the endangered black-footed ferret, which depends on healthy prairie dogs populations for its existence in the wild, is a glamor species. Wyoming’s incredible commitment to restoration of the black-footed ferret is another win-win story in which the Game and Fish Department and ranchers collaborated to make it happen. So, who owns the wildlife? Who has the responsibility to mange viable populations? A collaborative effort is always going to be the best solution.

  4. Thank you for this great article clearing up misconceptions about wildlife law. More bison and carnivores, less politics.

  5. Excellent article. I can’t count the number of times I have heard reference to the ‘fact’ that all wildlife in Wyoming is the property of the State of Wyoming. And, as referenced in this article, I have heard that myth spoken by federal lands managers. In spite of court rulings to the contrary, Wyoming has done a good job of putting a Wyo-centric spin on the notion of who owns the wildlife.
    Thank you for the well researched piece, Mr. Thuermer!

    1. Itis becoming more evident that grizzlies have nothing to do with species protection and everything to do with control of wyo land public and private. Since it is well documented that grizzlies and sheep are like fire and kerosene, to force grizzlies into sheep range is just a way to remove sheep from historically legal allotments. The environmental community has demonized farmers and ranchers as some evil empire and elevated predators to a revered status. What in the word is wrong with you people?

  6. An excellent report on a very difficult topic.

    The short answer to the question, who owns wildlife, is that no one owns wildlife. The long answer is a hell of a lot more complicated. See my essay “The Curious Legal History of the Original Outlaws,’ which was originally published in 1997 in Wyoming Wildlife.

    http://www.thewildlifenews.com/2008/01/30/the-curious-legal-history-of-the-original-outlaws/

    I wrote the public trust bill that in 2001 was “indefinitely postponed” by the Legislature. I and some friends created the Wildlife Legal Defense Political Action Committee (WILDPAC) to counter increasingly blatant attempts by Governor JIm Geringer, various natural resource industries, and the Game & Fish Commission to hand ownership and control of the state’s wildlife to the private sector for profit and power. The bill did not seek to create the public trust; it simply tried to more precisely define Wyoming’s public trust obligations, which at the time it was violating at every turn through willful negligence–for example, operating elk disease factories, otherwise known as elk feedgrounds, for the benefit of the stockgrowers. and outfitters.

    We managed to get the bill out of the Senate TRW Committee, but then it ran into a stonewall of opposition from the Governor, the stockgrowers, the outfitters, the miners, the drillers, the loggers, and even the gremlins living in the walls of the Capitol building. In short, everyone who exercises special interest power in Wyoming.

    Hank Coe, the Senate Majority (Republican, of course) Leader at the time, refused to allow the bill an up or down vote; he left the bill idling in oblivion. He expressed to me the opinion that the bill violated private property rights, without giving any examples of how it did. That’s because he couldn’t give any examples. The real reason for killing the bill is that it threatened the political power of Wyoming’s oligarchical natural resource industries.

    At bottom, politics is all about power and who exercises it. Will that power be openly exercised for the common good and public interest, or will it be exercised through a glass darkly for the few and the wealthy?

    Unfortunately, that’s a rhetorical question.

    RH