Supreme Court Confirms Supremacy of Federal Authority to Manage Wildlife on Federal Lands

With its recent unanimous decision in Kleppe v. New Mexico,¹ the Supreme Court has probably written its last chapter in a half-century old controversy concerning the authority of the federal government to manage wildlife on federal lands. The issue decided by the Court was the constitutionality of the Wild Free-Roaming Horses and Burros Act (Act),² a measure enacted in 1971 to protect all unbranded and unclaimed horses and burros on public lands of the United States as "living symbols of the historic and pioneer spirit of the West."³

The Act protects such animals by declaring them to be "an integral part of the natural system of the public lands" and by directing the Secretaries of Interior and Agriculture "to protect and manage [them] as components of the public lands." Criminal penalties are provided for anyone who maliciously kills a protected horse or burro or converts it to private use without authorization from the appropriate Secretary. Further, if a protected horse or burro strays onto private land, and the owner thereof wishes to have the animal removed, the must notify federal authorities to arrange for its removal.

In early 1974, a New Mexico rancher, whose cattle grazed on federal land pursuant to a permit issued under the Taylor Grazing Act, notified the state Livestock Board that certain wild burros were molesting his cattle and eating their feed. Acting pursuant to New Mexico's Estray Law,⁴ the Livestock Board rounded up 19 of the offending burros and sold them at auction. Subsequently, the U.S. Bureau of Land Management demanded that the state recover the burros and return them to the land from which they were taken. Instead, the state, its Livestock Board, and one of the purchasers at auction sued the Secretary of Interior, seeking to have the federal law declared unconstitutional.

A three-judge district court, emphasizing what it took to be "the traditional doctrines concerning wild animals," declared the burros to be "owned" by the state, and therefore beyond the scope of federal protection.⁵ In reaching its conclusion, the court distinguished a clear line of cases — Hunt v. United States,⁶ Chalk v. United States,⁷ and New Mexico State Game Commission v. Udall⁸ — upholding the power of the federal government under the Property Clause of the Constitution⁹ to kill wildlife on federal lands without compliance with state law. The district court took the view that in each of those cases the federal action was proper because it was necessary to protect the land, whereas in the case before it the Act was expressly aimed at protecting animals, not the land.

In reversing the district court, the Supreme Court rejected the asserted distinction, reasoning that although protection of the land is a sufficient basis for federal action, it is not a necessary basis. While expressly refraining from defining "the furthest reaches of the power granted by the Property Clause" with respect to federal lands, the Court held that such power "necessarily includes the power to regulate and protect wildlife living there."¹⁰

Among the issues not decided by the Court is the validity of that part of the Act pertaining to wild horses or burros that stray onto private land. Since all the burros in question were captured on federal land, the Court had no occasion to consider that question. Perhaps foreshadowing its view, however, the Court noted, despite the Secretary's disclaimer of any federal "ownership" of the burros, that "it is far from clear … that Congress cannot assert a property interest in the regulated horses and burros superior to that of the State."¹¹

Such a suggestion is anathema to those who have championed the doctrine of state ownership of wildlife as a bar to federal wildlife management. Nonetheless, Kleppe v. New Mexico is as clear ad forceful a statement of the supremacy of the Property Clause as a source of federal power to regulate wildlife on federal lands as Missouri v. Holland¹² was of the supremacy of the federal treaty-making power over conflicting state wildlife regulation. Accordingly, the state ownership theory, spawned 80 years ago in Geer v. Connecticut,¹³ remains, as Chief Justice Vinson described it in Toomer v. Witsell,¹⁴ "a fiction expressive in legal shorthand" of a state's powers to regulate the taking of wildlife by its citizens. As a restraint on the authority of the federal government to regulate wildlife, however, the doctrine remains essentially empty.

1. __ U.S. __, 6 ELR 20545 (U.S. June 17, 1976).

2. 16 U.S.C. §§ 1331-40 (Supp. IV, 1974).

3. 16 U.S.C. § 1331.

4. § 47-14-1 et seq., N.M. Stat. Ann. (Repl. 1966).

5. 406 F. Supp. 1237, 6 ELR 20509 (D.N.M. 1975).

6. 278 U.S. 96 (1928).

7. 114 F.2d 207 (4th Cir. 1940).

8. 410 F.2d 1197, 3 ELR 20450 (10th Cir.), cert. denied, 396 U.S. 961 (1969).

9. U.S. Const., art. IV, § 3.

10. __ U.S. at __, 6 ELR at 20547.

11. Id. W{at __|L|1012371|20546}, 6 ELR at 20546.

12. 252 U.S. 416 (1920).

13. 161 U.S. 519 (1896).

14. 334 U.S. 385 (1948).