Senate Environment & Public Works subcommittee on Fisheries, Water, and Wildlife oversight hearing on “Federal Interactions with State Management of Fish and Wildlife”

Opening statement

In his opening statement, Sen. Dan Sullivan (R-Alaska) said the purpose of the hearing is to examine the interactions of the state and federal governments as they manage fish and wildlife resources.

“By reserving certain powers to the various states, the unique needs of each of those states to manage and control their resources are preserved,” Sen. Sullivan said. “Alaska, for example, has an excellent history of sustainably managing our own fish and wildlife resources for the benefit of all Alaskans. And when the federal government and the states have been able to work together cooperatively, whether through the Pittman-Robertson or Dingell-Johnson Acts or other direction from Congress, species have benefited.”

The other main points in Sen. Sullivan’s statement were:

States enjoy management authority unless modified or diminished by acts of Congress, which occurred in the case of the Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle Protection Act, Marine Mammal Protection Act (MMPA), and Title 8 or the Alaska National Interest Lands Conservation Act (ANILCA).
Preemption can severely affect state management authority, leading to federal takeovers of species management and land-use under very specific circumstances. When agencies bypass the will of Congress through regulations, “it’s federal overreach at its worst.”
In Alaska, conservation is more than a matter critical to quality of life, customs, and traditions. It is also a matter of social justice and survival for Alaska’s most remote communities, which are dependent on subsistence hunting.
Across the nation, 560 refuges spanning 150 million acres have been reserved for fish and wildlife conservation. In Alaska, the U.S. Fish & Wildlife Service (FWS) manages nearly 77 million acres of land in 16 national wildlife refuges. While the refuges were created for conservation, not preservation, proposed regulations attempt to alter that balance and refuge management methods, and would also change the relationship between USFWS and the states.
The proposed regulations for Alaska refuges are not based on current law, but on USFWS ideological policy. If USFWS administratively imposes its will via regulatory action, science-based management approved by the Alaska Board of Game will be pre-empted. Furthermore, its spread to other states would not be limited.
The National Park Service finalized similar rules last fall that would prohibit several forms of hunting in preserves in Alaska, and would allow superintendents to simply post notices online preempting state wildlife laws and regulations.
Calling the rule, “overreaching, vague, and indiscriminate,” the Alaska Federation of Natives passed a resolution in opposition. That same resolution said, “Other federal agencies such as the U.S. Fish and Wildlife Service also apply various rules that interfere with traditional resource management practice that reduce subsistence access.”

Witnesses

Ronal Regan, Executive Director, Association of Fish and Wildlife Agencies
Donald Barry, Senior Vice President, Conservation Program, Defenders of Wildlife.
Doug Vincent-Lang, Former Director, Alaska Division of Wildlife Conservation, testifying on behalf of the Safari Club International

Regan’s testimony

Regan said his association’s mission is to protect state agency authority to conserve and manage the fish and wildlife within state borders. His main points were:

State agencies generally enjoy a good working relationship with federal agencies. In his written testimony, he described successful cooperative projects and gave some examples—“with the potential to be precedent setting”—that need to be resolved.
Despite state agencies having primary legal authority to manage most fish and wildlife in the U.S., concurrent state-federal jurisdiction authority occurs in specific situations. Because the federal government owns the land, federal agencies manage the habitat, so cooperative state-federal agency relationships are imperative.
State governments, as trustees for the resources, hold title to fish and wildlife on behalf of their citizens. The Congress has affirmed that state jurisdiction is concurrent with the federal authority starting with MBTA in 1918. Congress also granted federal agencies authority for listed threatened and endangered species under the Endangered Species Act (ESA), and certain migratory anadromous fish under the Anadromous Fish Conservation Act.
This status reflects the concurrent management jurisdiction of state and federal agencies, with the exception of MMPA in which the Congress gave exclusive management authority to the federal government.
USFWS recently published a proposed regulation in the Federal Register that would change Alaska Department of Fish and Game (ADF&G) management of fish and wildlife in National Wildlife Refuges (NWR). The comment period for this proposed regulation ends March 8.

If enacted, the rule would usurp Alaska’s authority for sustained yield management, including predator control and large ungulate protection in refuges in favor of “hands-off” or passive management, which would adversely impact ADF&G’s efforts to manage wildlife for maximum public benefits.
While USFWS says the proposed rule is about predator management, state review indicates the effect would be to derogate fundamentally state agency authority to manage fish and wildlife in federal refuges. This is contrary to ANICLA, and ANILCA legislative history affirms that predator control is one of many management tools appropriate for refuges.
Eliminating state agency management on refuges in favor of allowing extreme interpretation of natural diversity (i.e. no involvement by man) with resultant unchecked fluctuations in wildlife populations will reduce the availability of wildlife for subsistence and non-subsistence use.

Regan also outlined legislative and policy remedies that would apply universally to all federal lands and concurrent jurisdictional authorities of state agencies with federal agencies.

Interior Department policy regarding federal-state authority relationships with respect to fish and wildlife management (43 CFR Part 2.3) should be modernized and promulgated with revisions.
The use of savings clauses in federal law with respect to state authority for fish and wildlife management needs revision and more prominent placement in status or legislation.
Several federal agency organic acts need to be revised to use the phrase “in cooperation with the states” at the appropriate places in order to direct fish and wildlife management on federal land. The phrase also needs to be defined with certainty and clarity.
Both state and federal agencies need more opportunities to educate their respective staffs on the relationship of state-federal jurisdiction.

Barry’s testimony

In his testimony, Barry said USFWS is reading correctly the requirements of ANILCA and other federal laws governing national wildlife refuge management when it rejects state predator killing proposals. Defenders of Wildlife and a coalition of other national organizations strongly oppose an amendment—offered by Sen. Sullivan and recently added to S. 659, the Bipartisan Sportsmen’s Act—blocking the finalization of USFWS’s rule.

Details about Barry’s discussion of the status and quality of federal and state collaboration and cooperation on wildlife management issues can be found in his written testimony.

Barry listed the ongoing, collaborative wildlife conservation programs that federal and state authorities have operated for many decades. Further details about the National Wildlife Refuge System, the Wildlife and Sport Fish Restoration Program, the Migratory Bird Hunting Program, and the Endangered Species Program can be found in his written testimony.

Discussing the Alaska predator control dispute and state-federal interactions, he said Dan Ashe, USFWS Director, should have been given a chance to testify. A request by the subcommittee’s minority staff to place Ashe on the witness list was rejected by the majority staff.

Barry explained why USFWS’s proposed rejection of Alaska’s predator control program is consistent with and required by ANILCA and the 1997 Refuge Improvement Act:

Under ANILCA, Alaska’s national refuges were chosen intentionally to prevent exactly the sort of anti-predator initiatives now being promoted in the state.
Title VII of ANILCA dealing with Subsistence Opportunities for rural Alaskans does not preclude USFWS from banning state predator controls.
- In all instances under Section 302 and Section 303, the inclusion of subsistence as a purpose of each refuge was made subordinate to being consistent with the first enumerated primary purpose of conserving fish and wildlife, including maintaining the natural diversity of fish and wildlife species in each refuge.
- The USFWS proposed rulemaking that the state is upset about expressly states that it is not intended to apply to subsistence uses within refuges but rather is focused on addressing the killing of predators for sport hunting.
The protective refuge management standards under the 1997 Refuge Improvement Act are not preempted or in conflict with ANILCA.
The 1982 MOU between USFWS and the ADF&G reaffirms the primary authority of USFWS to reject the state’s predator control programs on refuges.

In summary, Barry said the dispute over USFWS’s rejection of Alaska’s proposed and highly aggressive predator control program is solidly based on the agency’s statutory obligations under ANILCA, the 1997 Refuge Improvement Act, and the 1996 Refuge Administration Act. It is also consistent with the 1982 MOU with the Alaska Department of Fish and Game as well as with a public lands and wildlife. It would be a major mistake for Congress to block the agency from finalizing its predator rule for national refuges in Alaska.

Vincent-Lang’s testimony

In his testimony, Vincent-Lang said Alaska, over the past decade, experienced increased federal administrative intrusions into fish and wildlife management that seem unresolvable given increasingly divergent management philosophies. He offered details as follows.

The intrusions include misuse of the Endangered Species Act. An example is the ringed seal, which was listed as a threatened species based on speculative modeling that forecasted possible reductions over a 100-year timeframe. The seals, however, currently number in the millions and are expected to remain at these numbers through mid-century. Such listings are unnecessary and allow federal agencies to exert management control over listed species and their environment.
The National Park Service, over Alaska’s objections, recently finalized new regulations governing wildlife in Alaska’s national preserves. The regulations closed NPS preserves to many hunting opportunities despite the lack of conservation concerns. NPS substituted its agency ethics and values as to what constitutes appropriate hunting methods, ignoring publically adopted state regulations that allowed those practices.
USFWS’s proposed new rules exert federal management control over wildlife in Alaska’s national wildlife refuges and will alter fundamentally the federal government’s long-standing wildlife management relationship with Alaska. Once applied in Alaska, USFWS could apply similar rules across the states.
USFWS is using its administratively adopted Biological Integrity Policy to thwart the protection of state management authority that the Congress included in the National Wildlife Refuge System Improvement Act and ANILCA, both of which confirmed deference to state management.
By incorporating natural diversity principles into its permanent regulations, USFWS is replacing time-proven, traditional “active” state management with a “hands off” management approach.
Under a hands-off approach it is questionable whether Alaska will be allowed to continue to actively manage its sheep and bear populations for trophy hunting opportunities.
Congress should help preserve the rights and opportunities of Alaska’s hunters and fishers and prevent federal intrusion. The state fish and game management model is a proven success that should be built on, not replaced with a new, centralized, one-fit-all, federal conservation model.

Vincent-Lang’s specific request was that Congress adopt legislation that ensures that the successful state fish and game management model is not preempted or compromised by federal administrative actions, with the following effects:

Clarify that the federal agencies’ responsibility for conservation of wildlife is a monitoring role.
Ensure that, unless specifically authorized by Congress, federal agencies are prohibited from adopting regulations that involve seasons, bag limits, methods and means, and from determining the range of sustainable wildlife numbers.
Require federal agencies to consult with state fish and wildlife agencies prior to all actions that involve wildlife management, and to obtain state concurrence. Without concurrence, federal agencies should not be authorized to regulate harvests, except as specifically stated in federal statutes.

Sen. Sullivan’s questions

Sen. Sullivan said committee members from both parties think USFWS and the states have a mostly cooperative approach. He also explained that Ashe was not invited to this hearing because it was for non-government witnesses to offer their views. Some of the practitioners can help bring an objective perspective on the states where this issues is having the most impact.

He asked about AFWA’s report entitled Wildlife Management Authority: the State Agency’s Perspective, and what led to the drafting of the report and how it related to the current topic.

Regan said tensions had emerged over either public lands management policy or wilderness policy. Differing perspectives existed in different parts of the country, coupled with the challenges of working with these issues.

Vincent-Lang said the 1992 MOU says that the state manages for natural diversity. The state of Alaska manages for ecosystems as a functional part, and humans as a part of that ecosystem. As a result, ecosystems are managed for human benefit. When the MOU was signed, the federal government was in accord that humans are a functional part of ecosystems. Now, USFWS believes that humans are a threat to ecosystems, and is increasingly managing for natural diversity to minimize human impact on species. That is a fundamental difference in Alaska, where the state manages ecosystems for human benefits.

Sen. Sheldon Whitehouse’s (D-RI) questions

Sen. Whitehouse acknowledged that local problems are real problems that need to be addressed even if they don’t affect citizens across the country. He asked the witnesses if their organizations have positions on global climate change.

Vincent-Lang said climate change is occurring but its impacts can be mitigated through a variety of means. Barry said that for wildlife conservation it is one of the biggest areas of concern. It will cause huge disruption in migration patterns, particularly on the northeastern coastline. Alaska polar bears are in trouble because of climate change.

Sen. James Inhofe (R-OK), the Chairman of the Senate Environment & Public Works Committee said the problems this hearing is about are not unique to Alaska. In recent years, the federal government has expanded its role in managing wildlife populations and dictating how states should manage wildlife. States fund much of their conservation and management programs through local excise taxes, and they have more on-the-ground expertise about local wildlife.

Oklahoma’s state agencies worked with local landowners and businesses, and other states to develop a plan for prairie chicken conservation. This five-state plan was successful in increasing the prairie chicken population by 25 percent from 2014 to 2015, illustrating another example of the strength and success of state management plans.

Sen. John Barrasso’s (R-WY) questions

Sen. Barrasso cited a report entitled Washington Gets it Wrong, which highlighted that local experts should be the people with the responsibility to protect local wildlife.

Regan agreed with the report and said state fish and wildlife managers are on the frontlines of enforcement.

Sen. Barrasso said USFWS concluded the grey wolf population had recovered and approved Wyoming’s state plan to manage the grey wolf populations, but still had not transferred that responsibility.

Barry responded that a district court judge disapproved the state management plan because USFWS had inappropriately delisted the grey wolf’s endangered classification.

Sen. Barrasso asked if any scientific basis existed for this ruling. Barry replied that he was not sure.

Sen. Barrasso asked Vincent-Lang if USFWS has increasingly encouraged the public and the states to take a hands-off approach to managing wildlife and the lands, and if Vincent-Lang agreed that this could be detrimental to preserved species and land.

Vincent-Lang said the state conservation model is based on a land-user based system. The more the users are separated from the benefits, the less willing they will be to pay for long term resources management and conservation. As some of the biggest financial supports of conservation, hunters also need to benefit from refuges and parklands across the country. USFWS views people as a threat, not an integral part of resource management, he added.

Lang said that in Alaska’s rural areas, where people may depend on moose for winter subsistence, survival is at risk if moose are left in a cyclical population status.

Sen. Sullivan said the purpose of the hearing was to review similar USFWS issues in other states. The proposed rule will allow the federal government to regulate predator populations in Alaska based on personal ethical preferences. He asked Vincent-Lang for more examples.

Vincent-Lang cited a national wildlife refuge that was first established as a moose range before it became a refuge. Governed by natural diversity guidelines, resident moose numbers dropped to such low levels where none were available for subsistence. Numbers also went very high, where the population damaged the refuge and made the food base unsustainable.

Personal ethics became part of the rule because USFWS determined that brown bear baiting was not an ethical hunting practice and banned it administratively.

Sen. Sullivan asked if USFWS still controls predators, even as it has banned state actions. Vincent-Lang responded that USFWS had asked ADF&G for permit to control mink populations that threatened pigeons on an island in Alaska. ADF&G granted the permit, but is still wondering why it cannot be granted the ability to manage indigenous caribou populations on Unimak Island.

Responding to another question, Vincent-Lang said USFWS is trending towards a passive management approach, and people in Alaska need a stable source of food, not a fluctuating one.

Sen. Sullivan said federal agencies have proposed rules that clearly impact states, and the states are the last to know about them.

At this hearing, he said, the importance of state-federal relationship over management needs to be established, along with the statutorily required level of state input.

Sen. Sullivan asked Regan if other states should be concerned with specific rules that impact one state only. Regan answered yes, and that biodiversity regulations placed on refuges in Alaska will create a new standard for judicial engagement. The rule could be exported from Alaska to other national wildlife refuges in the lower 48.

“To the extent that that would continue to perpetuate state authority, which is the real nexus for our engagement with the issue right now,” he said.

Sen. Sullivan noted that the Secretary of the Interior has 14 statutorily-assigned administrative responsibilities for the National Wildlife Refuge System and, with the specific Alaska rule, the secretary is clearly prioritizing one of the responsibilities, and defining it as a regulation. He asked Regan if this is appropriate, and if it has an impact beyond Alaska.

Regan said his organization does not think it is appropriate or needed, and it could impact other states beyond Alaska.

Sen. Whitehouse offered two closing observations. In Rhode Island, offshore trawling is allowed. In a trawl, incidental species caught as bycatch are usually in bad shape and will not survive if released. These fish could be processed and given to needy people, but that practice is a constant challenge and an area where managers could do a better job. Sen. Whitehouse said the role of the state and federal agencies needs to be watched when political influence appears to be involved, and close attention needs to be paid to the resources that impact people’s lives in rural areas.