{"id":3179,"date":"2023-04-29T12:37:30","date_gmt":"2023-04-29T16:37:30","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/elr\/?p=3179"},"modified":"2024-07-21T16:57:37","modified_gmt":"2024-07-21T20:57:37","slug":"wildlife-law-is-a-local-issue-too","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/elr\/2023\/04\/29\/wildlife-law-is-a-local-issue-too\/","title":{"rendered":"Wildlife Law is a Local Issue, Too"},"content":{"rendered":"

David M. Walsh*<\/sup><\/a><\/em><\/p>\n

View pdf here<\/a><\/p>\n

Introduction<\/h3>\n

The Supreme Court\u2019s 1920 decision in Missouri v. Holland<\/em>1<\/a><\/sup>* B.A., Florida State University; J.D. candidate, Harvard Law School. This essay began as a seminar paper for Mr. Eric Glitzenstein\u2019s Wildlife Law seminar at Harvard Law School. I am indebted to Mr. Glitzenstein and the seminar participants for their insight and inspiration, and to Professor Molly Brady for bringing Land Use Law back to Harvard.

\n252 U.S. 416 (1920).<\/span> set wildlife law on a trajectory it follows to this day. In upholding the Migratory Bird Treaty Act against a Tenth Amendment challenge, Justice Holmes wrote that migratory birds \u201ccan be protected only by national<\/em> action.\u201d2<\/a><\/sup>Id. at 435 (emphasis added). <\/span> And intuitively, that makes sense: wild animals aren\u2019t known to observe sovereign boundaries, so the laws designed to protect them should be uniform from state to state. Congress certainly agreed. Throughout the twentieth century, it passed sweeping, aggressive statutes designed to protect the nation\u2019s besieged wildlife.3<\/a><\/sup>See, e.g., Lacey Act of 1900, 16 U.S.C. \u00a7 3371 et seq.; Bald and Golden Eagle Protection Act of 1940, 16 U.S.C. \u00a7 668 et seq.; Marine Mammal Protection Act of 1972, 16 U.S.C. \u00a7 1531 et seq.; Endangered Species Act of 1973, 16 U.S.C. \u00a7 1531 et seq. The Supreme Court called the Endangered Species Act \u201cthe most comprehensive legislation for the preservation of endangered species ever enacted by any nation.\u201d Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).<\/span> As a result, in scholarship and law school classrooms, wildlife law is regarded principally as a body of federal law.4<\/a><\/sup>See, e.g., Katrina M. Wyman & Danielle Spiegel-Feld, The Urban Environmental Renaissance, 108 CAL. L. REV. 305, 306 (2020) (\u201c[S]cholars have primarily equated environmental law in the United States with federal environmental statutes and regulations.\u201d); John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 26 HARV. ENVTL. L. REV. 365, 375 (2002) (\u201cConceptually, the role of local government is seen as that of an incidental participant in a federal system of environmental law.\u201d).<\/span><\/p>\n

This essay argues that view is shortsighted, as there is a gap in the scope of federal regulatory authority. Land use authority over non-federal lands, which is vested in local governments, shapes the natural landscape in ways federal law cannot. Through zoning, permitting, and master plans, local governments regulate the spatial and functional aspects of human development.5<\/a><\/sup>See infra Part II.<\/span> The federal government, for its part, is constitutionally barred from exercising significant land use authority over land it does not own6<\/a><\/sup>See infra Part I. <\/span>\u2014in other words, about two-thirds of land in the United States.7<\/a><\/sup>Federal Land Ownership: Overview and Data, Cong. Res. Serv. Rep. R42346 (2020), available at https:\/\/sgp.fas.org\/crs\/misc\/R42346.pdf.<\/span> To be clear, my claim is not that the federal government\u2019s role is unimportant for wildlife conservation. It is crucial. But any consideration of wildlife law as a distinct body of law must account for the land use authority vested in local governments. To do otherwise ignores both the threats and possibilities that local land use decisions present to wildlife conservation efforts.<\/p>\n

It bears noting that state law plays an important role as well.\u00a0 In practice, states administer conservation programs and have passed sweeping laws to protect wildlife.8<\/a><\/sup>For a brief overview of the role of state government in wildlife law, see generally Temple Stoellinger et. al., Improving Cooperative State and Federal Species Conservation Efforts, 20 WYO. L. REV. 183, 186-91 (2020). <\/span> Conceptually, though, state wildlife laws work similarly to or in cooperation with the federal ones.9<\/a><\/sup>Id.<\/span> And while state law often guides the land use process, final authority over land use decisions rests with local governments.10<\/a><\/sup>See ROBERT C. ELLICKSON ET. AL., LAND USE CONTROLS: CASES AND MATERIALS 45-50 (4th ed. 2013); Hess v. Port Auth. Trans\u2013Hudson Corp., 513 U.S. 30, 44 (1994) (\u201c[R]egulation of land use [is] a function traditionally performed by local governments\u201d). <\/span> State wildlife law thus does not fill a regulatory \u201cgap\u201d in the same sense as local governments\u2019 land use authority.<\/p>\n

This essay proceeds in three parts. Part I outlines the constitutional boundaries of federal wildlife law, identifying the positive grants of authority Congress has made good use of, as well as the federal government\u2019s limitations. Part II turns to local governments, arguing that local land use authority is crucial for wildlife conservation. It briefly explains land use law, then describes its application to wildlife conservation with examples. Part III concludes with a discussion of why a broader conception of wildlife law\u2014one that accounts for the local land use authority\u2014matters from a wildlife conservation perspective.<\/p>\n

I.\u00a0\u00a0 Federal Wildlife Law: Constitutional Scope and Limits<\/h3>\n

Most federal wildlife law derives from one of three positive sources of constitutional authority. Under its Property Clause powers,11<\/a><\/sup>U.S. CONST. art. IV, \u00a7 3, cl. 2; Kleppe v. New Mexico, 426 U.S. 529 (Property Clause gives Congress broad power to regulate federal lands).<\/span> the federal government may regulate use of land it actually owns.12<\/a><\/sup>See Kleppe, 426 U.S. at 539 (1976). Lower courts have also upheld federal authority to regulate the use of land abutting federally owned land to the extent necessary to protect federal interests. See United States v. Lindsey, 595 F.2d 5, 6 (9th Cir. 1979) (Property Clause allows federal government to regulate non-federal lands \u201cwhen reasonably necessary to protect adjacent federal property or navigable waters.\u201d); Minnesota v. Block, 660 F.2d 1240, 1249-51 (8th Cir. 1981); High Point v. Nat\u2019l Park Serv., 850 F.3d 1185, 1199 (11th Cir. 2017). <\/span> Congress has explicitly directed the federal government to acquire and regulate federally owned land for the benefit of wildlife.13<\/a><\/sup>Land and Water Conservation Fund Act of 1965, 16 U.S.C. \u00a7 663(c). See also Section 5 of the Endangered Species Act, which requires certain agencies to acquire land for conservation as required by the Fish and Wildlife Act and the Migratory Bird Conservation Act. Id. \u00a7 1534(a).<\/span> The Land and Water Conservation Fund Act, for instance, directs federal agencies to acquire land for \u201cwildlife conservation and development purposes.\u201d14<\/a><\/sup>Land and Water Conservation Fund Act of 1965, 16 U.S.C. \u00a7 663(c). <\/span> Under its Commerce Clause powers,15<\/a><\/sup>U.S. CONST. art. I, \u00a7 8, cl. 3; Hughes v. Oklahoma, 441 U.S. 322 (1979) (Commerce Clause gives federal law supremacy over conflicting state law that discriminates against interstate commerce).<\/span> Congress has curbed market incentives for hunters and poachers by limiting or outlawing the interstate \u201ctake\u201d or transport of certain wildlife. The Lacey Act of 1900 was the first such law, forbidding transport in interstate commerce of wild animals taken in violation of state law.16<\/a><\/sup>16 U.S.C. \u00a7 3372(a). <\/span> Later invocations of the Commerce Clause power include Section 9 of the Endangered Species Act, which forbids the \u201ctransport,\u201d \u201cdeliver[y],\u201d and \u201cship[ment]\u201d of designated species,17<\/a><\/sup>Id. \u00a7 1538(a).<\/span> and the Marine Mammal Protection Act, which prohibits the take or transport of marine mammals.18<\/a><\/sup>Id. \u00a7 1372(a).<\/span> Under its general Article I lawmaking authority,19<\/a><\/sup>U.S. CONST. art. I, \u00a7 1.<\/span> Congress requires that federal agencies consider the impacts of federal action on wildlife and the environment more broadly. Most notably, the National Environmental Policy Act requires agencies to consider the environmental impacts of any action they engage in or license.20<\/a><\/sup>42 U.S.C. \u00a7 4332. <\/span> Section 7 of the Endangered Species Act requires federal agencies to consult with the Interior Secretary to ensure their actions\u2014including the issuance of permits for private action\u2014do not threaten any listed species or designated critical habitat.21<\/a><\/sup>16 U.S.C. \u00a7 1536(a).<\/span><\/p>\n

While broad, the federal government\u2019s authority to protect wildlife has one glaring limitation: land use regulation over non-federal land. In a series of decisions known as the \u201cnew federalism\u201d cases, the Supreme Court in the 1990s restricted the federal government\u2019s power to regulate matters that traditionally belonged to the states. Principal among those is the regulation of land use.22<\/a><\/sup>See, e.g., Michael C. Pollack, Land Use Federalism\u2019s False Choice, 68 ALA. L. REV. 707, 707 (2017) (\u201c[F]ew areas of law and policy are considered more quintessentially local than land use.\u201d); Marci A. Hamilton, The Constitutional Limitations on Congress\u2019s Power over Local Land Use: Why the Religious Land Use and Institutionalized Persons Act Is Unconstitutional, 2 ALB. GOV\u2019T L. REV. 366, 390-91 nn. 90-92 (2009) (compiling cases).<\/span> In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers<\/em>,23<\/a><\/sup>531 U.S. 159 (2001).<\/span> the Court suggested there were hard limits on federal land use authority. It held that the Clean Water Act did not authorize the Army Corps of Engineers to regulate waters entirely within the state of Illinois that migratory birds inhabited.24<\/a><\/sup>Id. at 173.<\/span> Without ruling on the Tenth Amendment issue, the Court made its position clear: the Constitution gave the federal government no role at the site. The Court recounted the litany of state and local permits that were already required,25<\/a><\/sup>Id. at 165 (\u201cBy 1993, SWANCC had received a special use planned development permit from the Cook County Board of Appeals, a landfill development permit from the Illinois Environmental Protection Agency, and approval from the Illinois Department of Conservation.\u201d).<\/span> and expressed skepticism at the stringency of the Army Corps\u2019 additional requirements.26<\/a><\/sup>Id.<\/span> Allowing the federal government to require permits, the Court concluded, would constitute \u201ca significant impingement of the States\u2019 traditional and primary power over land and water use.\u201d27<\/a><\/sup>Id. at 174.<\/span> Decisions like Cook County<\/em> and the subsequent Rapanos v. United States<\/em>28<\/a><\/sup>547 U.S. 715 (2006). In Rapanos<\/em>, a plurality of the Court sought to further narrow the scope of the term \u201cnavigable waters,\u201d but failed to secure a fifth vote. Writing for the plurality, Justice Scalia chided the Army Corps for attempting to exercise land use authority \u201cthat would befit a local zoning board.\u201d Id. at 738.<\/span> suggest that, as a constitutional matter, the federal government has little role in regulating the use of land it does not own.29<\/a><\/sup>See generally ROBERT C. ELLICKSON ET. AL., LAND USE CONTROLS: CASES AND MATERIALS 45-50 (4th ed. 2013).<\/span><\/p>\n

Congress, never one to go down gently, retains some attenuated influence on local land use decisions. While it cannot overtly regulate land use on non-federal land, Congress shapes local land use policy with two tools: incentives and permit requirements.30<\/a><\/sup>For an insightful account of Congress\u2019s options to shape local land use policy, see generally Michael C. Pollack, Land Use Federalism\u2019s False Choice, 68 ALA. L. REV. 707, 723-36 (2017).<\/span> First, federal statutes provide grant money to state and local governments for complying with certain conservation mandates. A notable example is the Coastal Zone Management Act.31<\/a><\/sup>16 U.S.C. \u00a7 1451 et seq.<\/span> The CZMA aims to channel land use decisions to protect sensitive coastal zones, and contemplates \u201cfull participation\u201d of affected local governments.32<\/a><\/sup>Id. \u00a7 1455(d)(1).<\/span> It sets minimum federal standards for coastal zone protection that ensure long-term habitat conservation for affected wildlife.33<\/a><\/sup>Id. \u00a7 1455(d)(13)(B).<\/span> Section 6 of the Endangered Species Act works similarly, offering federal funds to states that enter into cooperative agreements with the federal government to conserve endangered species.34<\/a><\/sup>Id. \u00a7 1535(d).<\/span> Second, federal agencies can impose permitting requirements on landowners to the extent endangered species are affected. The Endangered Species Act requires developers to secure a permit where their activities might result in incidental take of a listed species.35<\/a><\/sup>Id. \u00a7 1539(a)(1).<\/span> In order to do so, the developer must prepare a Habitat Conservation Plan (HCP) that sets out ways it will minimize its impact on the listed species.36<\/a><\/sup>Id. \u00a7 1539(a)(2).<\/span><\/p>\n

II.\u00a0\u00a0\u00a0 Local Land Use Authority and Wildlife Conservation<\/h3>\n

Land use law is, in broad terms, the set of laws that shape the development and conservation of land.37<\/a><\/sup>See generally ROBERT C. ELLICKSON ET. AL., LAND USE CONTROLS: CASES AND MATERIALS 57\u201375 (4th ed. 2013).<\/span> The vast majority of states have devolved land use power to the municipal level, either to incorporated municipalities or counties.38<\/a><\/sup>See, e.g., Florida\u2019s Community Planning Act, FLA. STAT. \u00a7 163.3167 et seq.; Colorado\u2019s Local Government Land Use Control Enabling Act, COLO. REV. STAT. \u00a7 24-65-101.<\/span> Municipalities\u2019 land use power gives them a measure of control over social, economic, and spatial aspects of human development. In general,39<\/a><\/sup>Generalizations in local government law are famously difficult, thanks in large part to their sheer quantity. The 2017 Census of Governments counted 38,779 general-purpose local governments in the United States\u20143,031 counties, 19,495 municipalities, and 16,253 townships. 2017 Census of Governments \u2013 Organization, U.S. CENSUS BUREAU, tbl. 3, https:\/\/www.census.gov\/data\/tables\/2017\/econ\/gus\/2017-governments.html. <\/span> land use authority is exercised through three mechanisms: zoning, permitting, and master plans.<\/p>\n

Zoning authority allows local governments to designate \u201cdistricts\u201d where particular land uses are allowed or forbidden. For instance, a local government might zone the district containing a major roadway for retail use, and a quieter district for residential use.40<\/a><\/sup>See Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926).<\/span> Permitting authority arises when landowners request exceptions to zoning rules.41<\/a><\/sup>The process for creating exceptions takes different forms\u2014most commonly variances, special exceptions, or rezonings\u2014each with different legal implications. See ROBERT C. ELLICKSON ET. AL., LAND USE CONTROLS: CASES AND MATERIALS 60 (4th ed. 2013).<\/span> As a condition for granting that exception\u2014which comes in the form of a permit\u2014local governments can impose requirements on developers, like funding municipal services that become necessary as a result of the development.42<\/a><\/sup>See Bethlehem Evangelical Lutheran Church v. City of Lakewood, 626 P.2d 668, 671 (Colo. 1981) (upholding municipal ordinance requiring developers to fund public improvements to the extent development necessitates them).<\/span> Finally, most local governments are required to promulgate a \u201cmaster\u201d or \u201ccomprehensive\u201d plan that guides the physical development of a region over time.43<\/a><\/sup>See, e.g., COLO. REV. STAT. \u00a7 30-28-106(1) (\u201cIt is the duty of a county planning commission to make and adopt a master plan for the physical development of the unincorporated territory of the county.\u201d).<\/span> Master plans are often only advisory, but nonetheless guide local land use decisions.44<\/a><\/sup>See ROBERT C. ELLICKSON ET. AL., LAND USE CONTROLS: CASES AND MATERIALS 74\u201375 (4th ed. 2013).<\/span> They can also become legally binding under state or municipal law.45<\/a><\/sup>See, e.g., Beaver Meadows v. Board of County Comm\u2019rs, 709 P.2d 928, 936 n.6 (Colo. 1985) (en banc) (\u201c[A] master plan is only one source of comprehensive planning, and is generally held to be advisory only . . . . However, in this case, the general assembly, and Larimer County, have required\u201d that the development proposal at issue \u201cbe in general conformity with the county\u2019s master plan or comprehensive plan.\u201d) [internal citations omitted].<\/span><\/p>\n

Each of these mechanisms can be employed in the name of wildlife conservation.46<\/a><\/sup>A comprehensive survey of land use law as it relates to wildlife conservation is beyond the scope of this brief essay. For a thorough, recent survey of local environmental laws, see Katrina M. Wyman & Danielle Spiegel-Feld, The Urban Environmental Renaissance, 108 CAL. L. REV. 305, 364\u201377 (2020). Professor Nolon\u2019s early, influential study of land use law for environmental protection is a similarly valuable resource. John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 26 HARV. ENVTL. L. REV. 365, 372\u2013410 (2002).<\/span> Most fundamentally, municipalities can zone undeveloped land to protect wildlife habitats.\u00a0 Municipalities in Ohio, for instance, have zoned for \u201copen space and conservation,\u201d which forbids all development.47<\/a><\/sup>See Reed v. Rootstown Township Board of Zoning Appeals, 458 N.E.2d 840, 841 (Ohio 1984).<\/span> Similarly, local governments in New York can designate districts for \u201cscenic resource protection.\u201d48<\/a><\/sup>See SOMERS, N.Y. CODE \u00a7 138-5.<\/span> Permitting requirements also give municipalities power to force developers to comply with conservation standards. In Colorado, municipalities can require developers to submit wildlife impact statements and modify site or subdivision plans based on their impact on wildlife.49<\/a><\/sup>COLO. REV. STAT. \u00a7 29-20-102.<\/span> In many Florida municipalities, developers building on beachfront are required to limit their use of bright lights to avoid interfering with seasonal sea turtle nesting.50<\/a><\/sup>See MONROE COUNTY, FLA., CODE OF ORDINANCES \u00a7 12-114 et seq. (1979); MIAMI BEACH, FLA., CODE OF ORDINANCES \u00a7 46-201 et seq. (2006).<\/span> Municipalities can also crystallize long-term protections for wildlife through their master plans. A master plan can steer human activity away from wildlife, or prevent development from circling important habitats such that they are fragmented, cutting wildlife off from important resources.51<\/a><\/sup>See generally ENV\u2019T. LAW INST., CONSERVATION THRESHOLDS FOR LAND USE PLANNERS (2003).<\/span> In Florida, state law requires that local governments\u2019 master plans provide for the conservation of \u201cwildlife [and] marine habitat.\u201d52<\/a><\/sup>FLA. STAT. \u00a7 163.3177(6)(d).<\/span><\/p>\n

All exercises of land use power will at some point impact wildlife. If local governments recognize their crucial role as part of the broader wildlife law regime, there is a chance that responsibility will shape the way they regulate land use. The discussion above shows that some municipalities have taken a leading role in wildlife conservation. On the other hand, reckless application of land use can have disastrous effects for wildlife. A local government that plans only for economic growth risks imperiling affected wildlife because land use decisions tend to ossify. Once undeveloped land is privately owned, the power to regulate it is curtailed by constitutional property protections.53<\/a><\/sup>See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1032 (1992) (Fifth Amendment Takings Clause forbids state conservation law that deprives landowner of \u201call economically beneficial uses\u201d of land).<\/span> While human development is inevitable, responsible exercise of the local land use power can attenuate the impact of development on wildlife.<\/p>\n

III.\u00a0\u00a0\u00a0 Conclusion<\/h3>\n

Wildlife law in the United States is best understood as having four key sources: the federal government\u2019s Commerce Clause, Property Clause, and Article I lawmaking powers, and\u2014I argue\u2014local governments\u2019 land use power. The federal government sets national standards for wildlife conservation under its three direct grants of authority, and indirectly influences land use decisions on non-federal land. Nonetheless, land use authority over the nearly two thirds of non-federal land in the United States rests in the hands of local governments.54<\/a><\/sup>Federal Land Ownership: Overview and Data, Cong. Res. Serv. Rep. R42346 (2020), available at https:\/\/sgp.fas.org\/crs\/misc\/R42346.pdf.<\/span> Through their land use authority, local governments can raise the bar for wildlife conservation by regulating the extent of development, protecting environmentally sensitive areas, licensing hunting, limiting pollution, and controlling population density, to name a just few.<\/p>\n

As global wildlife populations dwindle,55<\/a><\/sup>See INTERGOVERNMENTAL SCIENCE-POLICY PLATFORM ON BIODIVERSITY AND ECOSYSTEM SERVICES, THE GLOBAL ASSESSMENT REPORT ON BIODIVERSITY AND ECOSYSTEM SERVICES: SUMMARY FOR POLICYMAKERS 22\u201333 (2019).<\/span> advocates must consider every angle through which it can be protected. State legislation can impose positive obligations on municipalities to conserve wildlife in their exercise of land use power.56<\/a><\/sup>See, e.g., FLA. STAT. \u00a7 163.3177(6)(d).<\/span> For instance, a state statute could require that the components of a comprehensive plan aimed at wildlife conservation be reviewed and approved by the relevant state wildlife agency, and thus become legally binding unless the state agency says otherwise. A similar move was upheld in a recent Florida case.57<\/a><\/sup>Cf. Nassau County v. Willis, 41 So. 3d 270, 278 (Fla. Dist. Ct. App. 2010), where a county was allowed to violate its comprehensive plan with respect to development on wetlands because the state Water Management District redesignated the plot in question.<\/span> Separately, national land use literature, like the Growing Smart Legislative Guidebook<\/em>, can and should encourage municipalities to plan with wildlife conservation\u2014not just environmental protection\u2014in mind.58<\/a><\/sup>AM. PLAN. ASS\u2019N, GROWING SMART LEGISLATIVE GUIDEBOOK: MODEL STATUTES FOR PLANNING AND THE MANAGEMENT OF CHANGE (Stuart Meck ed., 2002).<\/span> Moving forward, as the Supreme Court continues to curb the scope of federal regulatory authority,59<\/a><\/sup>See, e.g., West Virginia v. Environmental Protection Agency, 597 U.S. __ (2022).<\/span> it is not clear that the federal wildlife statutes are immune from further limitation. To the extent the Endangered Species Act\u2019s Habitat Conservation Plan provisions resemble traditional local land use power, they may be subject to a Tenth Amendment challenge on those grounds.60<\/a><\/sup>See Rapanos, 547 U.S. at 738 (suggesting federal permit requirements violated state sovereignty by operating in a manner \u201cthat would befit a local zoning board\u201d).<\/span> If the Court further limits the federal government\u2019s power to conserve wildlife, it will fall to the local land use process to regulate for wildlife conservation.<\/p>\n

Taking a broader view of wildlife law is not just important as a conceptual exercise. Land use decisions over non-federal land offer a prospective means of preserving wildlife, and if they are understood that way, both conservationists and local government leaders can work to tailor land use regulations to protect wildlife. That is not to say it will be easy. Like the federal government\u2019s wildlife law statutes, local land use policy must balance competing interests. Nonetheless, situating local land use power within the broader wildlife law framework creates a clearer picture of wildlife law as a whole, imposing an obligation on local government leaders to acknowledge the impact of their decisions on wildlife, and orienting conservation advocates toward local\u2014not just federal\u2014solutions.<\/p>\n","protected":false},"excerpt":{"rendered":"

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