Federalism, Preemption, and the Nationalization of American Wildlife Management

The Dynamic Balance Between State and Federal Authority

Lowell E. Baier - Foreword by Stephen Gardbaum

Environmental law expert Lowell E. Baier reveals how over centuries the federal government preempted the states’ authority over managing their resident wildlife. He shows the precedents that led to the current state of wildlife management, and how to foster a constructive environment at all levels of government to improve wildlife and biodiversity.

Rowman & Littlefield Publishers

Pages: 342 • Trim: 6⅜ x 9

978-1-5381-6490-7 • Hardback • March 2022 • $130.00 • (£100.00)

978-1-5381-9649-6 • Paperback • --------- • $44.00 • (£35.00)

978-1-5381-6491-4 • eBook • March 2022 • $130.00 • (£100.00)

Subjects: Law / Natural Resources, Law / Environmental, History / United States / General

Federalism, Preemption, and the Nationalization of American Wildlife Management

The Dynamic Balance Between State and Federal Authority

Hardback

Paperback

eBook

Summary

Environmental law expert Lowell E. Baier reveals how over centuries the federal government preempted the states’ authority over managing their resident wildlife. He shows the precedents that led to the current state of wildlife management, and how to foster a constructive environment at all levels of government to improve wildlife and biodiversity.

Details

Rowman & Littlefield Publishers

Pages: 342 • Trim: 6⅜ x 9

978-1-5381-6490-7 • Hardback • March 2022 • $130.00 • (£100.00)

978-1-5381-9649-6 • Paperback • --------- • $44.00 • (£35.00)

978-1-5381-6491-4 • eBook • March 2022 • $130.00 • (£100.00)

Subjects: Law / Natural Resources, Law / Environmental, History / United States / General

Author

Lowell E. Baier is an attorney and a legal and environmental historian and author. Baier holds a B.A. from Valparaiso University, a J.D. from Indiana University and has received two honorary doctorates. He’s worked in Washington, D.C. throughout his 56-year career as a tireless advocate for natural resources and wildlife conservation. Throughout his career, he has observed and documented wildlife and its habitats on extensive treks and expeditions in the mountains and wilderness regions across the North American Continent, the Pamirs and Caucasus of Russia, and Mongolia’s Gobi Desert and Altai Mountains, providing him with first hand observations of wildlife and man’s interactions across the globe. He was recognized as the Conservationist of the Year by the National Fish and Wildlife Foundation in 2008, and again in 2010 and 2013 by two different national organizations.

Table of Contents

List of Illustrations xi
Guide to Acronyms, Constitutional Provisions, and Terms xiii
Foreword xvii
Preface xxi
1 From the Mayflower Compact to the US Constitution, 1620–1789 1
2 Defining the New Government and the Separation of Powers, 1789–1835 10
3 Westward Expansion, the First Industrial Revolution, Dual Sovereignty, and the Public Trust Doctrine, 1835–1861 16
4 The Civil War, Reconstruction, the Advent of the Second Industrial Revolution, the Enduring Public Trust Doctrine, and State Ownership of Wildlife, 1861–1896 24
5 America’s Changing Culture: Market Hunting, the Lacey Act, the Migratory Bird Treaty Act, and the Beginning of the Progressive Era, 1896–1910 32
6 The Ethos of the Industrial Revolution Drives the Progressive Movement into America’s Social Fabric and Laws, 1910–1919 42
7 Prohibition and Reform: The Emergence of the Administrative State, 1919–1933 55
8 The Great Depression, FDR’s New Deal, and a “New” Supreme Court Overwhelms States’ Rights, 1933–1941 65
9 The Competing Ideologies that Characterized the Progressive Movement and Beyond, 1890–1940 72
10 The Stone Court and the Development of the Presumption against Preemption in Rice, 1941–1946 84
11 The End of the State Wildlife Ownership Doctrine following World War II, 1946–1969 88
12 The Burger Court: State Ownership of Wildlife Declared a Legal Fiction and Anachronism, 1969–1986 98
13 The Rehnquist Court: A Continued Swing toward Conservative Federalism and Preemption, 1986–2005 118
14 The Roberts Court and the Development of Area-Specific Jurisprudence, 2005–2022 139
15 The Future of Federal Preemption of State Authority over Wildlife and the Presumption against Preemption Doctrine in Wildlife Cases 147
16 State and Federal Cooperation and Coordination of the Endangered Species Act: Past and Present 158
17 The Three Biggest Threats Undermining Federalism and State Wildlife-Management Authority 165
18 Funding Endangered-Species Conservation: The Achilles Heel 173
Acknowledgments 185
Appendix 1: Federal Environmental and Consumer-Protection Statutes and Agencies Established during the 1960’s and 1970’s Green Revolution 189
Appendix 2: Graphs of Preemption Statutes and US Supreme Court Cases 193
Notes 197
Bibliography 261
Index 287
About the Author 000

Reviews

In this informative, highly readable book, Lowell Baier traces the trajectory of the federalism doctrine from its pre-founding origins to the present day. Having provided that broad context, the author ably chronicles federalism’s evolution in the area wildlife management, from the 19th century public trust doctrine through landmark enactments, such as the Migratory Bird Treaty Act and the Endangered Species Act, and important Supreme Court precedents. The basic story is one of increased centralization and federal preemption, largely driven—the author shows—by an abiding and perhaps excessive faith in ‘scientific management’ and ‘expertise.’ Baier’s engaged, yet judicious and commendably non-polemical discussion should be of value and interest to a broad audience.

— Michael S. Greve, PhD, Professor of Law, Antonin Scalia School of Law, George Mason University. Author of Real Federal¬ism: Why It Matters, How Could It Happen

American wildlife management law for over two centuries has been a crucible in which the evolution of American federalism was forged. Lowell Baier’s sweeping, accessible account of that history comprehensively and insightfully assesses the conflicts and tensions leading to an ascendant federal presence. Looking forward, climate change presents an unprecedented challenge to conservation policy, requiring that we return to the crucible to forge a national wildlife management regime for a no-analogue future. Whether one leans towards staying with the strong federal model Baier critiques or favors returning to the more state-centric approach he advocates, this masterful history is indispensable reading for anyone engaged in the conversation about the future of our nation’s wildlife and habitat conservation federalism.

— J. B. Ruhl, PhD, JD, David Daniels Allen Distinguished Chair in Law, Co-Director, Energy, Environment, and Land Use Law Program, Vanderbilt University School of Law

In charting the development of federalism over the history of the United States, the book offers an instructive account of the evolving conceptions of this key structural principle. Baier illuminates two important and sometimes conflicting features of contemporary federalism—the need for concurrent federal and state regulation and the extremely powerful role of federal spending. By applying these critical insights to the field of environmental protection, the book makes a significant contribution to a crucial area of public policy.

— Robert A. Schapiro, JD, Dean and C. Hugh Friedman Professor of Law University of San Diego School of Law

Lowell Baier breathes life into this scholarly-but-vivid review of American federalism. The greatest tragedy of conservation law has been to sow discord among advocates who should be allies in habitat restoration and management. As someone who often sides with a more muscular federal approach, I nonetheless find common cause with Baier in understanding these origins of the internecine feud over conservation.

— Robert L. Fischman, JD, George P. Smith, II, Distinguished Professor of Law Professor of Public and Environ¬mental Affairs, Indiana University Maurer School of Law

Lowell Baier provides an opening here: an opening to engage in a more serious and thoughtful debate about the future of wildlife and biodiversity in the United States. As Baier shows with a sweeping historical narrative, there is not a facet of wildlife management, or a solution to the biodiversity crisis, that doesn’t implicate federalism in some fashion. Not everyone will agree on Baier’s diagnosis of what went wrong in the balance of federal and state powers and what needs to be done about it. But the most viable and durable solutions will emerge only once the champions of federal and state powers over wildlife listen and learn from one another. Baier’s book provides one such opportunity and his call for rediscovering a common bond, matched with responsible funding for the ESA and wildlife conservation more broadly, could not come at a better time.

— Martin Nie, PhD, Professor, Natural Resources Policy. Director, Bolle Center for People and Forests W.A. Franke College of Forestry and Conservation, University of Montana

Tension between the states and the federal government within the unique American enterprise of wildlife conservation and management has simmered and boiled over repeatedly since the origins of the conservation movement. Lowell Baier has produced a scholarly, thoroughly researched, clearly written history with an explanation of the roots of the current conflict, and a recipe for cooperative conservation.

— John F. Organ, PhD, CWB, Scientist Emeritus, Cooperative Fish and Wildlife Research Units; and Past President, Honorary Member, and Fellow, The Wildlife Society

Baier correctly depicts the unwelcome drift toward federal hegemony in wildlife law, especially the Endangered Species Act. Although the ESA contemplates a federal partnership with the states, reflecting their well-established division of legal responsibility for resident and migratory species, federal programs are now preeminent. As experience in California suggests, the states are fully qualified to manage endangered species and their habitat. Baier correctly prescribes a return to shared responsibility for wildlife management, as Section 6 of the ESA intends.

— Douglas P. Wheeler, JD, Attorney at Law, Former Secretary, California Natural Resources Agency (1991–1999)

While the story of wildlife management in America and the evolution of its legal underpinnings from the Mayflower to the modern era might seem too grand to be told in a single volume, Lowell Baier more than meets the challenge. Pairing easy clarity with unsparing research, Mr. Baier successfully situates the development of our state and federal conservation agencies within the sweeping tapestry of our constitutional history. Laying this history before us, he leaves the reader to ponder critical questions about the relationship between state and federal authorities and how to best achieve cooperative conservation in the decades to come.

— Ronald J. Regan, CWB, Executive Director, Association of Fish and Wildlife Agencies

This comprehensive work provides a detailed historical accounting of the tug of war between the federal and state governments regarding the management of wildlife. A must read for those seeking to understand the historical roots of wildlife management and law in the United States. Understanding the history, as Lowell Baier sagely notes, is key to our ability to move forward in a cooperative and constructive manner – working together at the state and federal level for the betterment of our nation’s wildlife and biodiversity.

— Temple Stoellinger, JD, College of Law, University of Wyoming

Awards

• Winner, Independent Press Award (Environment Category) (2023)
• Winner, Independent Press Award (History: United States) (2023)

Federalism, Preemption, and the Nationalization of American Wildlife Management

The Dynamic Balance Between State and Federal Authority

Lowell E. Baier - Foreword by Stephen Gardbaum

Federalism, Preemption, and the Nationalization of American Wildlife Management

The Dynamic Balance Between State and Federal Authority

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