Full Title Name:  Finding the Balance: The Environmental Policies of a State's Department of Natural Resources or Department of Game and Fish

 

By: Dan Holwerda [1]

Introduction

The purpose of this paper is to explore the possible conflicts of interests regarding each state’s environmental policies as they are administered by its respective Department of Natural Resources or Department of Game and Fish.   Specifically, this paper will conduct an in-depth look at the States of Alaska, Arizona, California, Colorado, Delaware, Georgia, Kansas, Michigan, Missouri, Montana, New York, Texas, and Wyoming by comparing their environmental policies and the manner in which each state implements them. These states were chosen in order to get a broad spectrum of how states implement their environmental policies. A broad spectrum was achieved by utilizing a selection states from the different regions of the United States (i.e. the outlining states, the lower forty-eight states, the East Coast, The West Coast, the Midwest, the Great Lakes, the North East, the South, the Northern and Western states, The South West, etc.), by selecting large heavily populated states and less populated states, by selecting States that are seemingly more conservative (i.e. pro-hunting) and states that are seemingly more liberal (i.e. where one would expect to see less of a pro-hunting stance), as well as picking states known to be big hunting locations and states that are not well-known for being big hunting destinations.

Section one will describe the history of the Pittman-Robertson Act [2] and its effects on how States implement their environmental policies.   Section two will describe how it appears that each State’s Department of Natural Resources or Department of Game and Fish caters only to the hunter in designating and implementing its environmental policies.   Section three will discuss the “intelligible principle” [3] and its application in all the above-mentioned states. Specifically, the section will discuss how some anti-hunting organizations and other environmental organizations, which may or may not be anti-hunting, attempt to show that a state legislature has unconstitutionally delegated its authority to its Department of Natural Resources or Department of Game and Fish in order to show that the current system of determining and implementing state environmental policies is null and void. This paper will attempt to show that no unconstitutional delegation of authority really exists.   Finally, section four will describe how the environmental policy interest of hunters is really the same as other (non-hunting) pro-environment/natural resource groups.   Specifically, the section will discuss the implementation of the Pittman Robertson Act [4] the conservation movement of the late 19 ^th and early 20 ^th centuries, and how the efforts of pro-hunting organizations have preserved millions of acres of natural habitat and have protected and helped many wildlife species.

 

I. The Pittman-Robertson Act

The Federal Aid in Wildlife Restoration Act [5] , popularly known as the Pittman-Robertson Act , was approved by Congress on September 2, 1937 , and began functioning July 1, 1938 . [6]

The purpose of this Act was to provide funding for the selection, restoration, rehabilitation and improvement of wildlife habitat, wildlife management research, and the distribution of information produced by the projects. [7] The Act was amended October 23, 1970 to include funding for hunter training programs and the development, operation and maintenance of public target ranges. [8]

Funds are derived from an 11 percent Federal excise tax on sporting arms, ammunition, and archery equipment, and a 10 percent tax on handguns. [9]   These funds are collected from the manufacturers by the Department of the Treasury and are apportioned each year to the States and Territorial areas (except Puerto Rico ) by the Department of the Interior on the basis of formulas set forth in the Act. [10]   Appropriate State agencies are the only entities eligible to receive grant funds. [11]   Funds for hunter education and target ranges are derived from one-half of the tax on handguns and archery equipment. [12]

Each state's apportionment is determined by a formula, which considers the total area of the state and the number of licensed hunters in the state. [13] The program is a cost-reimbursement program, where the state covers the full amount of an approved project then applies for reimbursement through Federal Aid for up to 75 percent of the project expenses. [14]   The state must provide at least 25 percent of the project costs from a non-federal source. [15]   To be eligible for federal funds, a state must assent to the provisions of the Act and have laws governing the conservation of wildlife. [16] Additionally, a state must have a law prohibiting the diversion of license fees paid by hunters for any purpose other than the administration of the state's fish and game department. [17]

In other words:

The Pittman-Robertson Wildlife Restoration Act authorizes the Secretary of the Interior to cooperate with the States, through their respective State fish and game departments, in wildlife-restoration projects.  However, per statute, no money apportioned under this chapter to any state shall be expended until the state in question assents to the provisions of this chapter and has passed laws for the conservation of wildlife, which includes a prohibition against the diversion of license fees paid by hunters for any other purpose than the administration of said state's fish and game department.  The Act also provides for grants for hunter education programs and a mechanism for a multi-state conservation grant program. [18]

 

II. Do State’s Departments of Natural Resources or Departments of Game anf Fish Cater to Hunters Only?

In addition to reimbursement funding from the Pittman-Robertson Act [19] , states frequently set up additional funds to procure monies to preserve and conserve a state’s natural resources and wildlife. These funds are frequently funded, at least partially, from taxes and sale proceeds from the sale of hunting equipment, licenses, etc. For example, Alaska established the Fish and Game Fund [20] , which shall be used exclusively for the following:

(1) to carry out the purposes and provisions of this title, except AS 16.51 and AS 16.52, or other duties that may be delegated by the legislature to the commissioner or the department; and (2) to carry out such purposes and objectives within the scope of this title except AS 16.51 and AS 16.52 as may be directed by the donor of any such funds…. [21]

Moreover, Alaska law states that:

(a) The fish and game fund shall be made up of the following money and other money the legislature appropriates, which shall be deposited and retained in the fund until expended: (1) money received from the sale of state sport fishing, hunting, and trapping licenses, tags, and special permits, waterfowl conservation tags purchased by hunters, and anadromous salmon tags purchased by fishermen; (2) proceeds received from the sale of furs, skins, and specimens taken by predator hunters and other employees;… [22]

Likewise, in Arizona there are three distinct funds, the Game and Fish Fund, [23] the Waterfowl Conservation Fund, [24] and the Wildlife Endowment Fund, [25] that are financially supported by the proceeds from the sale of hunting licenses, duck stamps, and taxes from the sale of hunting apparel in which the Arizona Department of Game and Fish can utilize to implement its policies.

Hunters do indeed provide a significant amount of funding and resources to the States, which allows the states, through their respective state agencies, to implement their wildlife and natural resource management policies. Thus, one might logically assume that the hunter has a great influence on the State’s determination of wildlife management policies. However, as I will show later this strong influence in no way harms the environmental interests of a group, or those individuals concerned about the management of our natural resources and wildlife who are not hunters or who do not promote the use of hunting as a management tool.

 

III. The Intelligible Principle and the Unconstitutional Delegation of Legislative Authority     

Both the United States Constitution and every State constitution require the separation of powers between the three branches of government . [26]   However, in every jurisdiction researched, the legislature is allowed to delegate its decision-making authority to administrative agencies if there is an “intelligible principle”, or clear standards, accompanying the delegation of authority.

In Whitman v. American Trucking Associations , [27] the United States Supreme Court reaffirmed its findings that Article I. § 1 of the Constitution vests "[a]ll legislative Powers herein granted ... in a Congress of the United States." [28] This text permits no delegation of those powers [29] , and that when Congress confers decision-making authority upon agencies Congress must "lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." [30]   Moreover, the degree of agency discretion that is acceptable varies according to the scope of power that is congressionally conferred. [31] A certain degree of discretion, and thus lawmaking, is inherent in most executive and judicial action. [32]

In keeping with this holding of the United States Supreme Court, every state researched has also held that in order for the delegation of legislative authority to be constitutional, clear guidelines or an “intelligible principle” must be given. For example, in the State of Alaska the courts have adopted a sliding-scale approach in analyzing the validity of the delegation of authority to an administrative agency. [33] Thus, the constitutionality of the delegation is determined on the basis of the scope of power delegated to the agency and the specificity of the standards to govern its exercise (i.e. when the scope of power increases to immense proportions, the standards must correspondingly be more precise). [34] These standards may be either explicit or implicit. [35]

The Arizona Supreme Court also requires an intelligible principle behind any delegation of legislative authority so that the delegation of authority is lawful under the non-delegation doctrine. [36] The Arizona Supreme Court said that the Arizona Legislature can confer authority upon an agency or department to exercise its discretion in administering the law. [37] However, this delegation must be limited by clear guidelines that define with sufficient clarity the agency’s legal boundaries. [38] Specifically, Arizona courts held in 3613 Ltd. v. Department of Liquor Licenses and Control , [39] that:

A statute that gives unlimited regulatory power to a commission, board, or agency without prescribed restraints offends the constitution. See Southern Pac. Co. v. Cochise County , 92 Ariz. 395, 404, 377 P.2d 770, 777 (1963) . In other words, "[t]he board must be corralled in some reasonable degree and must not be permitted to range at large and determine for itself the conditions under which a law should exist and pass the law it thinks appropriate." State v. Marana Plantations, Inc. , 75 Ariz. 111, 114, 252 P.2d 87, 89 (1953) . Unless delegation of legislative power is limited by standards adequate to guide the administrative agency in the exercise of the power granted, such statutory delegation is unconstitutional. See Id. ... The legislature may not delegate its power to make laws. See Lake Havasu City v. Mohave County , 138 Ariz. 552, 559, 675 P.2d 1371, 1378 (App.1983) . However, the legislature may authorize an agency or department to exercise its discretion in administering the law. See Id. Such discretion is properly delegated if it is defined with sufficient clarity to enable the agency or board to recognize its legal bounds. See Id.  

Moreover, the Arizona Supreme Court in Southwest Engineering Co. v. Ernst, [40] held that if statutory language imposing a duty does not have sufficient definiteness to serve as a guide for those who have the duty imposed upon them, then the statute does not have sufficient literal significance to be capable of intelligent execution and, therefore, violates constitutional provisions found in Article 4 of the Arizona State Constitution directing that powers of the three branches of government be separate.

In California , California appellate courts have held that the unconstitutional delegation of power occurs when the state legislature confers unrestricted authority upon a state administrative agency to make fundamental policy decisions and fails to provide adequate direction for the implementation of that policy . [41]   “This doctrine rests upon the premise that the legislative body must itself effectively resolve the truly fundamental issues. It cannot escape responsibility by explicitly delegating that function to others or by failing to establish an effective mechanism to assure the proper implementation of its policy decisions." [42] (citations omitted).  Once the Legislature has established the law, it may properly delegate the authority to administer or apply the law to private or governmental entities. [43] Thus, delegations of authority to administrative agencies must include sufficient definite directions for the administrative body to follow. [44] Likewise, any statute that delegates discretion to an administrative officer must, under separation of powers doctrine, also provide the officer with ascertainable guidelines in exercising his or her authority. [45]

Likewise, Colorado courts have held that a legislative delegation of power to an administrative agency is valid only if the legislative body has provided both sufficient standards to guide the agency's exercise of that power, and adequate procedural safeguards to protect against the unreasonable abuse of that power. [46] Moreover, in Morgan v. Colorado Dept. of Health Care Policy, [47] the Colorado Appellate Court held that:

[t]he delegation doctrine requires that states provide "sufficient statutory standards and safeguards and administrative standards and safeguards, in combination, to protect against unnecessary and uncontrolled exercise of discretionary power."  These standards must be sufficient to ensure that agency action is rational and consistent, and must provide for meaningful appellate review. [48]

Furthermore, the Colorado Supreme Court has laid out a test to determine whether the delegation of legislative power to an administrative agency is too broad; “ whether there are sufficient standards and safeguards and administrative standards and safeguards, in combination, to protect against unnecessary and uncontrolled exercise of discretionary power." [49]

The Delaware Supreme Court has held that to avoid an unlawful delegation of legislative power, a statute must establish adequate standards and guidelines for the administration of the declared legislative policy and for guidance and limitation to those individuals or agencies whom discretion has been vested in, that there may be safeguards against arbitrary and capricious action and to assure reasonable uniformity in operation of law. [50]   Likewise, the Delaware Supreme Court held that to avoid an objection over the unconstitutional delegation of legislative power to an administrative agency, adequate safeguards and standards to guide discretion must be found in or at least can be inferred from the statute, but such standards need not be minutely detailed and the whole statute may be looked into in the light of its surroundings and objectives in deciding whether the standards are sufficient. [51]

The Georgia courts have similarly held that w here a delegation of power to an executive official or agency is made with sufficient clear guidelines, the executive official's or agency’s exercise of that delegated power does not violate the separation-of-powers provision of the State Constitution. [52]   Moreover, the delegation of legislative authority passes constitutional muster when the purpose and the policy of the legislation are clearly provided for, although the method, the details, the making of subordinate rules, and the determination of facts to which the policy is to apply are deferred to another agency or individual. [53]

In general, in Kansas , legislative authority may be delegated to an administrative body if guidelines are set forth in a statute that establishes the manner and circumstances in which such agency can exercise that power. [54] “ Where the legislature enacts general provisions for regulation and grants a particular state agency the discretion to fill in the details, we will not strike down the legislation as constitutionally impermissible unless such provisions fail to fix reasonable and definite standards to govern the exercise of such authority.” [55]

Michigan courts have held that, "[L]egislation in which power is delegated to an administrative agency must contain language, expressive of the legislative will, that defines the area within which an agency is to exercise its power and authority." [56] Thus, to preserve the constitutional separation of powers, the Legislature must provide standards to effectively measure agency compatibility with the legislative will. [57]   The constitution permits the Legislature to set forth standards that are flexible and practicable enough so that they can be adapted to conditions with which the Legislature cannot deal practically on an individual basis. [58] Furthermore, in Blank v. Department of Corrections [59] , the Michigan Supreme Court held tha t not every act, which resembles legislation, requires the passing of a law, and accordingly, the state legislature may constitutionally delegate rulemaking authority to its executive agencies. However, “ The Legislature must provide standards to an administrative agency for the exercise of power delegated to it.” [60]

The Missouri appellate courts have held:

The general rule is that a statute or ordinance which vests discretion in administrative officials must include standards for their guidance in order to be constitutional. However, since the tendency is toward greater liberality in permitting grants of discretion, the validity of any grant of discretion will depend largely upon the nature of the activity sought to be regulated. [61]

Moreover, in Att&t Information Systems, Inc. v. Wallemann, [62] the Missouri courts held that, where the delegation of power is clear, the detail for the exercise of power need be given only within practical limits. The rest may be left up to the administrative agency that was delegated the duty to accomplish the legislative purpose. [63]

In Montana , the legislature may constitutionally delegate its legislative functions to an administrative agency, but it must first provide the agency, with reasonable clarity, limitations upon the agency's discretion and provide the agency with policy guidance. [64] Furthermore, the Montana Supreme Court clarified its rule in that:

[t]he law-making power may not be granted to an administrative body to be exercised under the guise of administrative discretion. Accordingly, in delegating powers to an administrative body with respect to the administration of statutes, the legislature must ordinarily prescribe a policy, standard, or rule for their guidance and must not vest them with an arbitrary and uncontrolled discretion with regard thereto, and a statute or ordinance which is deficient in this respect is invalid. In other words, in order to avoid the pure delegation of legislative power by the creation of an administrative agency, the legislature must set limits on such agency's power and enjoin on it a certain course of procedure and rules of decision in the performance of its function; and, if the legislature fails to prescribe with reasonable clarity the limits of power delegated to an administrative agency, or if those limits are too broad, its attempt to delegate is a nullity.  On the other hand, a statute is complete and validly delegates administrative authority when nothing with respect to a determination of what is the law is left to the administrative agency, and its provisions are sufficiently clear, definite, and certain to enable the agency to know its rights and obligation. [65]

Moreover, the Montana Supreme Court held a delegation of power to be unconstitutional or invalid if either the legislature failed to prescribe a policy, standard, or rules to guide the agency receiving the delegated power or the legislature failed to describe the limits of the delegated power or of the limits of the power are too broad. [66]

New York courts have held in Lavalle v. Hayden [67] that there is a well-founded presumption that an act of the legislature is constitutional and that this presumption can only be upset by evidence beyond a reasonable doubt. [68] Moreover, this case also held that it is “well settled that there is no constitutional prohibition against the legislative delegation of power, with reasonable safeguards and standards to an agency or commission to administer the law as enacted by the Legislature.” [69]

Likewise, New York courts have held that while the state legislature cannot delegate its law making powers or functions to another body, per the separation of powers constitutional provision, the state legislature can delegate the power to implement and administer laws created by the legislature to an executive branch agency or commission provided, however, that the delegated power is circumscribed by reasonable safeguards and standards. [70]   Note, however, the New York Supreme Court in Ritterband v. Axelrod [71] has also held that the legislature, in giving standards or guidelines in limiting the agencies discretion, is not required to supply the administrative officials with rigid formulas, especially in fields where flexibility is necessary, [72] and the legislative delegation of power need only specify standards is such a detailed fashion or manner as is reasonably necessary and practicable in light of the complexities of a particular area that is to be regulated. [73]

Texas courts have held that the state legislature may delegate its powers to administrative agencies, which are established to carry out legislative purposes, so long as the state legislature establishes reasonable standards to guide the agency in exercising those powers. [74]   Similarly, the Texas Supreme Court has held that the state legislature may delegate its power to an administrative agency to establish rules and or regulations only when the legislature has provided reasonable standards to guide the agency in carrying out the legislative prescribed policy. [75]

Lastly, the Wyoming Supreme Court has held that when a legislature delegates its authority, it must first define standards as reasonably precise as the subject matter permits. [76]

Some anti-hunting organizations and other environmental organization, which may or may not be anti-hunting, attempt to show that a state legislature has unconstitutionally delegated its authority to its Department of Natural Resources or Department of Game and Fish in order to show that the current system of determining and implementing state environmental policies, arguing that the system is designed to protect only hunter’s interests, is null and void. Some of these organizations argue that the state legislature has not given the respective department clear standards or guidelines to govern the department’s actions, or clear legal boundaries as to their ability to set and enforce environmental, natural resource, and wildlife policies. However, this attack on the current environmental policies is weak. Consider, for example, the researched states.

In Alaska , the state constitution specifically states that “ It is the policy of the State to encourage the settlement of its land and the development of its resources by making them available for maximum use consistent with the public interest.” [77]   Moreover, “The legislature shall provide for the utilization, development, and conservation of all natural resources belonging to the State, including land and waters, for the maximum benefit of its people” [78] and “Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use.” [79]   Furthermore, “Fish, forests, wildlife, grasslands, and all other replenishable resources belonging to the State shall be utilized, developed, and maintained on the sustained yield principle, subject to preferences among beneficial uses.” [80]   Thus, these constitutional sections show how the State legislature has spelled out clear guidelines for the state agency to follow.

Moreover, as an example of clear guidelines, the Alaska Administrative Code specifically spells out the powers of the Board of Game in Sec. 16.05.255:

(a) The Board of Game may adopt regulations it considers advisable in accordance with AS 44.62 (Administrative Procedure Act) for   (1) setting apart game reserve areas, refuges, and sanctuaries in the water or on the land of the state over which it has jurisdiction, subject to the approval of the legislature; (2) establishing open and closed seasons and areas for the taking of game; (3) establishing the means and methods employed in the pursuit, capture, taking, and transport of game, including regulations, consistent with resource conservation and development goals, establishing means and methods that may be employed by persons with physical disabilities; (4) setting quotas, bag limits, harvest levels, and sex, age, and size limitations on the taking of game; (5) classifying game as game birds, song birds, big game animals, fur bearing animals, predators, or other categories; (6) methods, means, and harvest levels necessary to control predation and competition among game in the state; (7) watershed and habitat improvement, and management, conservation, protection, use, disposal, propagation, and stocking of game; (8) prohibiting the live capture, possession, transport, or release of native or exotic game or their eggs; (9) establishing the times and dates during which the issuance of game licenses, permits, and registrations and the transfer of permits and registrations between registration areas and game management units or subunits is allowed; (10) regulating sport hunting and subsistence hunting as needed for the conservation, development, and utilization of game; (11) taking game to ensure public safety [81] ….

The Arizona constitution is silent on the issue of natural resources. However, the Arizona revised statutes in title 17, specifically spell out clear wildlife management guidelines to the State’s Department of Game and Fish. For example, “[ w]ildlife, both resident and migratory, native or introduced, found in this state…are property of the state and may be taken at such times, in such places, in such manner and with such devices as provided by law or rule of the commission.” [82] Moreover, the commission must follow these guidelines:

A. The commission shall: 1. Make rules and establish services it deems necessary to carry out the provisions and purposes of this title. 2. Establish broad policies and long-range programs for the management, preservation and harvest of wildlife. 3. Establish hunting, trapping and fishing rules and prescribe the manner and methods, which may be used in taking wildlife. 4. Be responsible for the enforcement of laws for the protection of wildlife. 5. Prescribe grades, qualifications and salary schedules for department employees. 6. Provide for the assembling and distribution of information to the public relating to wildlife and activities of the department. 7. Prescribe rules for the expenditure, by or under the control of the director, of all funds arising from appropriation, licenses, gifts or other sources. 8. Exercise such powers and duties necessary to carry out fully the provisions of this title and in general exercise powers and duties which relate to adopting and carrying out policies of the department and control of its financial affairs…. B. The commission may: 1. Conduct investigations, inquiries or hearings in the performance of its powers and duties. 2. Establish game management units or refuges for the preservation and management of wildlife. 3. Construct and operate game farms, fish hatcheries, fishing lakes or other facilities for or relating to the preservation or propagation of wildlife. 4. Expend funds to provide training in the safe handling and use of firearms and safe hunting practices… . 7. Enter into agreements with the federal government, with other states or political subdivisions of the state and with private organizations for the construction and operation of facilities and for management studies, measures or procedures for or relating to the preservation and propagation of wildlife and expend funds for carrying out such agreements [83] ….

In California, like Arizona, the state constitution is silent on the issue of natural resources or wildlife management. However, the California State Legislature specifically spelled out the State’s wildlife management policies, and the powers and duties of the Department of Fish and Game in the California Fish and Game Code. For example:

1345.  The board shall investigate, study, and determine what areas within the State are most essential and suitable for wildlife production and preservation, and will provide suitable recreation; and shall ascertain and determine what lands within the State are suitable for game propagation, game refuges, bird refuges, waterfowl refuges, game farms, fish hatcheries, game management areas, and what streams and lakes are suitable for, or can be made suitable for, fishing, hunting, and shooting. 1346.  The board shall also ascertain what lands are suitable for providing cover for the propagation and rearing in a wild state of waterfowl, shore birds, and upland birds, and the possibilities of acquiring easements on such lands to provide such cover. 1347. As a result of the studies, the board shall determine what areas, lands, or rights in lands or waters should be acquired by the state in order to effectuate a coordinated and balanced program resulting in the maximum restoration of wildlife in the state and in the maximum recreational advantages to the people of the state. [84 ]

In Colorado , the state constitution specifically spells out prohibited methods of taking wildlife. [85] The state legislature went on to clarify guidelines for the Colorado Division of wildlife. For example:

1) It is the policy of the state of Colorado that the wildlife and their environment are to be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and its visitors. It is further declared to be the policy of this state that there shall be provided a comprehensive program designed to offer the greatest possible variety of wildlife-related recreational opportunity to the people of this state and its visitors and that, to carry out such program and policy, there shall be a continuous operation of planning, acquisition, and development of wildlife habitats and facilities for wildlife-related opportunities… . (3) In order to foster the welfare of the inhabitants of the state of Colorado, it is further declared to be the policy of this state to protect and encourage full development of absolute and conditional water rights created under state law and to develop and maximize the beneficial use of the waters to which Colorado and its citizens are entitled under interstate compacts. (3.5)(a) The general assembly hereby finds, determines, and declares that it supports the recommendation of the Lower Arkansas river commission in its plan dated March 25, 1993, to protect and enhance fish and wildlife resources at the Great Plains Reservoirs, and further finds that a joint funding effort, which includes funds appropriated from the wildlife cash fund created in section 33-1-112 to carry out such recommendation, would further the public interest by establishing recreational opportunities in southeastern Colorado….(4) The state shall utilize hunting, trapping, and fishing as the primary methods of effecting necessary wildlife harvests. [86]

In Delaware , the state constitution is also silent with regard to wildlife management and the protection of the state’s natural resources. However, the State legislature provided clear guidelines to the Delaware Division if Fish and Wildlife in state statutes. [87]

The Georgia constitution does not say anything about wildlife management or the conservation of the state’s natural resources. Guidelines limiting the power of the Department of Natural Resources can be found in the Georgia Code. [88]   However, the state legislature has specifically spelled out its wildlife management policy to which the department must follow:

(a) The General Assembly recognizes that hunting and fishing and the taking of wildlife are a valued part of the cultural heritage of the State of Georgia . The General Assembly further recognizes that such activities play an essential role in the state's economy and in funding the state's management programs for game and nongame species alike, and that such activities have also come to play an important and sometimes critical role in the biological management of certain natural communities within this state. In recognition of this cultural heritage and the tradition of stewardship it embodies, and of the important role that hunting and fishing and the taking of wildlife play in the state's economy and in the preservation and management of the state's natural communities, the General Assembly declares that Georgia citizens have the right to take fish and wildlife, subject to the laws and regulations adopted by the board for the public good and general welfare, which laws and regulations should be vigorously enforced. The General Assembly further declares that the state's wildlife resources should be managed in accordance with sound principles of wildlife management, using all appropriate tools, including hunting, fishing, and the taking of wildlife. (b) The ownership of, jurisdiction over, and control of all wildlife, as defined in this title, are declared to be in the State of Georgia, in its sovereign capacity, to be controlled, regulated, and disposed of in accordance with this title. Wildlife is held in trust by the state for the benefit of its citizens and shall not be reduced to private ownership except as specifically provided for in this title. All wildlife of the State of Georgia is declared to be within the custody of the department for purposes of management and regulation in accordance with this title. However, the State of Georgia , the department, and the board shall be immune from suit and shall not be liable for any damage to life, person, or property caused directly or indirectly by any wildlife. (c) The department has the authority and the responsibility to work with cooperating sportsmen, conservation groups, and others to encourage participation in hunting and fishing at a level to ensure continuation of such activities in perpetuity and no net loss of hunting and fishing opportunity on state owned lands. Further, the department is authorized to promote and encourage hunting, fishing, and other wildlife associated recreation on state managed wildlife areas, public fishing areas, federally owned or managed forests, and other suitable public and private lands of this state. (d) To hunt, trap, or fish, as defined in this title, or to possess or transport wildlife is declared to be a right to be exercised only in accordance with the laws governing such right. Every person exercising this right does so subject to the authority of the state to regulate hunting, trapping, and fishing for the public good and general welfare; and it shall be unlawful for any person exercising the right of hunting, trapping, fishing, possessing, or transporting wildlife to refuse to permit authorized employees of the department to inspect and count such wildlife to ascertain whether the requirements of the wildlife laws and regulations are being faithfully complied with. Any person who hunts, traps, fishes, possesses, or transports wildlife in violation of the wildlife laws and regulations violates the conditions under which this right is extended; and any wildlife then on his person or within his immediate possession is deemed to be wildlife possessed in violation of the law and is subject to seizure by the department pursuant to Code Section 27-1- 21. Nothing in this subsection shall be construed to reduce, infringe upon, or diminish the rights of private property owners as otherwise provided by general law [89] ….

Like Arizona, California and Delaware, the Kansas constitution does not mention any thing about the management of the state’s wildlife or natural resources.   However, Kansas’s statues clearly spell out guidelines limiting the power/authority of the secretary of Kansas’s Department of Wildlife and Parks. For example:

The secretary shall have the power to: (a) Adopt, in accordance with K.S.A. 32-805 and amendments thereto, such rules and regulations as necessary to implement, administer and enforce the provisions of the wildlife and parks laws of this state; … (f) purchase, lease, accept gifts or grants of or otherwise acquire in the name of the state such water, water rights, easements, facilities, equipment, moneys and other real and personal property, and interests therein, including any property abandoned on department lands and waters, and maintain, improve, extend, consolidate, exchange and dispose of such property, as the secretary deems appropriate to carry out the intent and purposes of the wildlife and parks laws of this state; (g) acquire, establish, develop, construct, maintain and improve state parks, state lakes, recreational grounds, wildlife areas and sanctuaries, fish hatcheries, natural areas, physical structures, dams, lakes, reservoirs, embankments for impounding water, roads, landscaping, habitats, vegetation and other property, improvements and facilities for the purposes of wildlife management, preservation of natural areas and historic sites and providing recreational or cultural opportunities and facilities to the public and for such other purposes as suitable to carry out the intent and purposes of wildlife and parks laws of this state; (h) operate and regulate the use of state parks, state lakes, recreational grounds, wildlife areas and sanctuaries, fish hatcheries, natural areas, historic sites and other lands, waters and facilities under the jurisdiction and control of the secretary, so as to promote the public health, safety and decency and the purposes for which such lands, waters and facilities are maintained and operated and to protect and safeguard such lands, waters and facilities, including but not limited to: (1) Regulating the demeanor, actions and activities of persons using or within such lands, waters and facilities; [90] ….

In Michigan , the state constitution, clearly lays out the policy regarding the conservation of the state’s natural resources as being a paramount public concern. [91]   Michigan statutes give clear guidance to the Department of Natural Resources as to their power. For example, Michigan statutes state that “ [a]ll animals found in this state, whether resident or migratory and whether native or introduced, are the property of the people of the state, and the taking of all animals shall be regulated by the department as provided by law.” [92] Moreover, state law also states that: 

(1) The department shall manage animals in this state. In managing animals, the department may issue orders to do all of the following: (a) Make recommendations to the legislature regarding animals that should be added or deleted from the category of game. (b) Determine the kinds of animals that may be taken. (c) Determine the animals or kinds of animals that are protected. (d) Except as otherwise provided in section 40110, establish open seasons for taking or possessing game. (e) Establish lawful methods of taking game. (f) Establish lawful methods of taking game for persons who have certain disabilities. (g) Establish bag limits. (h) Establish geographic areas within the state where certain regulations may apply to the taking of animals. (i) Determine conditions under which permits may be issued by the department. (j) Establish fees for the issuing of permits by the department. (k) Regulate the hours during which animals may be taken.   ( l ) Require that a person involved in a chase of an animal have in his or her possession a valid license that would authorize the taking of the animal being chased. (m) Establish conditions under which animals taken or possessed outside of this state may be imported into this state.   (n) Regulate the buying and selling of animals and parts of animals. (o) Establish methods of taking animals that are primarily taken because of the value of their pelts, which methods supplement the lawful methods of taking such animals that exist on October 1, 1988 . [93]

The Missouri constitution provides a broad grant of authority to its Department of Natural Resources; “ The department shall administer the programs of the state as provided by law relating to environmental control and the conservation and management of natural resources.” [94] More specific guidelines are stated in state statutes. [95]

In Montana , the state constitution requires that the state legislature and every other state resident “must maintain and improve a clean and healthful environment” [96] The State legislature clearly spelled out the Department of Fish, Wildlife and Parks’ power and authority in the Montana Statutes. For example:

(1) The department shall supervise all the wildlife, fish, game, game and nongame birds, waterfowl, and the game and fur-bearing animals of the state and may implement voluntary programs that encourage hunting access on private lands and that promote harmonious relations between landowners and the hunting public. It possesses all powers necessary to fulfill the duties prescribed by law and to bring actions in the proper courts of this state for the enforcement of the fish and game laws and the rules adopted by the department. (2) The department shall enforce all the laws of the state respecting the protection, preservation, management, and propagation of fish, game, fur- bearing animals, and game and nongame birds within the state. (3) The department has the exclusive power to spend for the protection, preservation, management, and propagation of fish, game, fur-bearing animals, and game and nongame birds all state funds collected or acquired for that purpose, whether arising from state appropriation, licenses, fines, gifts, or otherwise. Money collected or received from the sale of hunting and fishing licenses or permits, from the sale of seized game or hides, from fines or damages collected for violations of the fish and game laws, or from appropriations or received by the department from any other sources is appropriated to and under control of the department [97] ….

New York probably has the most explicit guidelines to its Department of Environmental Conservation of all the states researched. The New York constitution gives a comprehensive set of guidelines for conservation. [98] The New York legislature supplemented this constitutional provision with a Declaration of a conservation policy. [99]   Moreover, the legislature went on to specifically describe the powers and authority of the department by stating, for example:

1. It shall be the responsibility of the department, in accordance with such existing provisions and limitations as may be elsewhere set forth in law, by and through the commissioner to carry out the environmental policy of the state set forth in section 1-0101 of this chapter. In so doing, the commissioner shall have power to: a. Coordinate and develop policies, planning and programs related to the environment of the state and regions thereof; b. Promote and coordinate management of water, land, fish, wildlife and air resources to assure their protection, enhancement, provision, allocation, and balanced utilization consistent with the environmental policy of the state and take into account the cumulative impact upon all of such resources in making any determination in connection with any license, order, permit, certification or other similar action or promulgating any rule or regulation, standard or criterion; [100] …

Like a few other states, the Texas constitution is silent in regards to wildlife or natural resource management. Again, like other states, Texas clearly describes the granted power to the Texas Parks and Wildlife Department with clear standards:

(a) The department shall administer the laws relating to game, fish, oysters, and marine life, as set out in this code. (b) The department may: (1) collect and enforce the payment of all taxes, licenses, fines, and forfeitures due to the department; (2) inspect all products required to be taxed by the laws relating to game, fish, oysters, and marine life and verify the weights and measures of the products; (3) examine on request all streams, lakes, and ponds for the purpose of stocking with fish best suited to the locations; (4) manage the propagation and distribution of fish in state fish hatcheries; and (5) manage the propagation and distribution of birds and game in state reservations. [101]

Lastly, in Wyoming , the state constitution is also silent as to the state’s natural resource and wildlife management policy. Instead, the state legislature decided to describe the wildlife management policy by a statute. [102] The powers and duties of the commission are specifically spelled out:

(a) The commission is directed and empowered: (i) To fix season and bag limits, open, shorten or close seasons on any species or sex of wildlife for any type of legal weapon, except predatory animals, predacious birds, protected animals, and protected birds, in any specified locality of Wyoming, and to give notice thereof; (ii) To establish zones and areas in which trophy game animals may be taken as game animals with a license or in the same manner as predatory animals without a license, giving proper regard to the livestock and game industries in those particular areas; (iii) To acquire lands and waters in the name of Wyoming by purchase, lease, agreement, gift or devise, not including powers of eminent domain, and to develop, improve, operate, and maintain the same for the following purposes: (A) Fish hatcheries, rearing ponds, game farms, and bird farms; (B) Management of game animals, protected animals and birds, furbearing animals, game birds, fish, and their restoration, propagation, or protection; (C) Public hunting, fishing, or trapping areas as places where the public may hunt, trap, or fish in accordance with law [103] ….

  Moreover, specifically, the Wyoming Supreme Court, in Wyoming Coalition v. Wyoming Game & Fish Com'n., [104] has held that Statutes delegating authority to Game and Fish Commission to set seasons and bag limits provide sufficient standards for action by the Commission.

I admit that while completing my research, I did not find a case in which a state court specifically held that a State Legislature’s delegation of authority to a State Department of Natural Resources or Game and Fish was sufficiently clear. However, it still seems apparent through the research that all of these states have set clear guidelines as to the power and authority of their respective departments and department heads.   Yet admittedly, some states are better than others when it comes to setting clear guidelines as to how their respective Departments of Natural Resources or Departments of Game and Fish should manage the natural resources and wildlife within the state.

For example, both Colorado and Georgia (see examples above) give specific directions as to what the State Legislature would like to accomplish with the local wildlife populations. On the other hand, Kansas and Michigan were not very clear in laying out guidelines as to what their State legislature would like to accomplish with their wildlife populations. For example, the Michigan Legislature has not laid out a policy or goals regarding the deer population within the state. Thus, there is no clear guideline for the Michigan Department of Natural Resources to follow in order to balance the interests of farmers, other animal populations, tourists, car owners, car insurance companies, hunters, and other parties of interest. Still, however, even if they were no specific clear guidelines present, most state case law suggests that the delegation of legislative power could be in broad, generic or general terms especially in areas or subject matters that are complex; the management of ecosystems and living creatures should qualify as an extremely complex and technical science/art form which requires the expertise of knowledgeable biologist, botanists and other relevant scientists.  

For example, in Alaska , when a statute delegates authority to an administrative agency and it does not expressly provide a standard, a standard may be applied from the general policy for purposes underlying the legislative enactment. [105] Moreover, in Arizona , "[t]he standards laid down by the legislature may be broad and in general terms. The legislature does not have to supply administrative officials with a specific formula to guide them when flexibility and adaptability are necessary." [106] (citations omitted).   Furthermore, the legislature may set a general standard to guidance the administrative agency and leave the administrative details to the discretion of the agency without unconstitutionally delegating its power. [107]

California Appellate Courts have held in State Bd. of Education v. Honig , [108] that:

The nondelegation doctrine does not invalidate reasonable grants of power to an administrative agency as long as there are adequate safeguards to protect against misuse of that power. However, the standards to guide adoption of administrative rules and regulations need not be expressly set forth in the authorizing statute. They may be implied from the statutory purpose or related statutes. More stringent and specific standards are required only where necessary to prevent abuse, for example, in cases in which representatives from private industry serve on administrative boards with power to make rules affecting board members' competitors. [109] (citations omitted)

Another example can be found in Delaware .   W hile the existence of a statutory standard is relevant in assessing the validity of a delegation of authority, the totality of protections, including the existence of safeguards for those whose interests may be affected, is really determinative. [110] Moreover, where it is not feasible for the legislature or General Assembly to supply a precise statutory standard(s) without frustrating the purpose of the legislation, the presence of procedural safeguards may compensate substantially for the lack of set of precise statutory standards. [111]   The preciseness of the statutory standards will vary based on both the complexity of area at which the legislation is directed and susceptibility to change the area covered by the statute. [112]

The modern trend in Kansas in delegating power to administrative agencies is to require less detailed standards and guidance in order to facilitate the administration of laws in areas of complex social and economic problems and to give great leeway to the legislature in setting such standards. [113] It is true that Kansas law requires s tatutes delegating legislative authority to fix reasonable and definite standards to establish the manner and exercise of the power delegated; however, the legislature may enact statutes in broad outline and authorize an administrative agency to fill in the details. [114]

In Michigan , the Michigan Appellate courts have held that “ due process requires that the delegation of legislative tasks to an administrative agency be accompanied by the existence of standards as reasonably precise as the subject matter requires or permits. “ [115]   Similarly, in the Michigan Appellate courts have held that the required preciseness of the delegated standards depends on the complexity of the subject matter. [116] Moreover, The Michigan Supreme Court has enunciated a three-part test for determining whether a legislative delegation of power is valid: (1) the act must be read as a whole, (2) the act is presumed to be constitutional, and (3) the standards must be as reasonably precise as the subject matter requires or permits. [117]   Furthermore, "reasonably precise" does not mean specific language is required; the Legislature may provide standards "under quite general language, so long as the exact policy is clearly made apparent. " [118]

In a similar fashion, Missouri courts, in Att&t Information Systems, Inc. v. Wallemann , [119] have held that, in addition to those powers expressly given by statute, the powers and duties of a public officer or agency include "those lying fairly within its scope, those essential to the accomplishment of the main purpose for which the office was created, and those which, although incidental and collateral, serve to promote the accomplishment of the principal purposes." [120] Cognately, a statutory grant of power to an official or agency "carries with it, by implication, everything necessary to carry out the power or right and make it effectual and complete..." [121]

In New York , New York courts have held in Lavalle v. Hayden , [122] that:

Notwithstanding the fact that standards and guidelines are necessary to delimit the discretionary power of execution and administration of laws which has been delegated, it is not always necessary that the particular legislative enactment expressly detail these standards (see Matter of City of Rochester v. County of Monroe , 81 Misc.2d 462, 364 N.Y.S.2d 678, (1974)). It has been held that the requisite standards may be implied by policy and purpose (see Matter of Barton Trucking Corp. v. O'Connell , 7 N.Y.2d 299, 197 N.Y.S.2d 138, 165 N.E.2d 163 (1959); Matter of Bologno v. O'Connell , 7 N.Y.2d 155, 196 N.Y.S.2d 90, 164 N.E.2d 389 (1959); Matter of City of Rochester v. County of Monroe , 81 Misc.2d 462, 364 N.Y.S.2d 678, supra), and that such policy or purpose may be broadly stated (see Dorst v. Pataki , 90 N.Y.2d 696, 665 N.Y.S.2d 65, 687 N.E.2d 1348 (1997)).

Moreover, New York Courts have held that an administrative agency possesses all the powers expressly delegated to it by the Legislature and the delegation of authority will be upheld as valid so long as the Legislature limits the field in which that discretion is to operate and provides clear standards to govern its exercise. However, it is not always necessary for the Legislature to provide precise guidelines to an administrative agency charged with carrying out the Legislature’s policies. In certain technical areas, where flexibility is required to enable an administrative agency to adapt to changing conditions, it is sufficient for the Legislature to confer broad power upon the agency to fulfill the policy goals embodied in the statute, leaving it up to the agency itself to promulgate the necessary regulatory details. [123]   The New York Supreme Court even went as far as to say that the standards may be extremely broad in nature. [124]    

In a similar fashion, Texas courts have held that the state legislature is not required to include every detail or anticipate every possible circumstance that may arise when delegating its power to an agency, nor will a statute be invalid because of a failure to include specific details; thus, broad standards included in legislative delegation may pass constitutional scrutiny. [125] Furthermore, a constitutional standard may be broad and encompass a multitude of factors if it is no more extensive than the public interest demands. [126]

As the reader can see, most of the state jurisdiction allow for broad standards, especially in complex areas. Thus, even if one were to argue that the above state legislatures do not give specific standards regarding wildlife management to their respective state agency, the delegation of legislative power should still be held constitutional; broad general standards are enough to pass constitutional muster.   Therefore, if non-hunting groups want input into the State’s current environmental policy they should petition each State Legislature to change or clarify the current guidelines and policies that are given to the respective state agency.

 

IV. A Real Conflict?

The conflict between hunters and other individuals or organizations concerned about the environment and wildlife who do not hunt, is really not a conflict at all. Besides arguments about someone’s personal view on the appropriateness of hunting as a wildlife management tool, those individuals, both hunters and non-hunters alike, really want to obtain the same goals: that of protecting our natural resources and wildlife for the future use and enjoyment of the next generations, to have protected areas or sanctuaries that are untouched by human development, and too have abundant wildlife to view and enjoy. It doesn’t matter whether you like to hunt or not, a hunter enjoys the great wilderness and views of abundant wildlife as much as the next anti-hunter who too enjoys the great outdoors.

For example, the mission statement for the Alaskan Department of Fish and Game reads: “The Alaska Department of Fish and Game's mission is to protect, maintain, and improve the fish, game, and aquatic plant resources of the state, and manage their use and development in the best interest of the economy and the well-being of the people of the state, consistent with the sustained yield principle.” [127]   Thus, their goals and strategies as described in the mission statement are beneficial to hunters and non-hunters alike. The California Department of Fish and Game has a similar mission statement:

The Mission of the Department of Fish and Game is to manage California's diverse fish, wildlife, and plant resources, and the habitats upon which they depend, for their ecological values and for their use and enjoyment by the public. The Department of Fish and Game maintains native fish, wildlife, plant species and natural communities for their intrinsic and ecological value and their benefits to people. This includes habitat protection and maintenance in a sufficient amount and quality to ensure the survival of all species and natural communities. The department is also responsible for the diversified use of fish and wildlife including recreational, commercial, scientific and educational uses. [128]

Additionally, every state is interested in promoting business and tourism, both vital to a state’s economy.   Hunting and the sale of hunting related products both promote tourism and increase money spent in the state’s economy. Similarly, states generate a lot of income from tourist visiting the state and the national parks within the state. Thus, groups interested in tourism and boosting the state’s economy desire state and national parks, sanctuaries and wildlife refuges as well as a large wildlife population to sustain not only the hunting business but nature lovers as well. For example, the International Association of Fish and Wildlife Agencies reported that:

[H]unters are good for the economy. They not only purchase hunting gear, trucks and boats; they also fill their gas tanks and coolers. They stay at motels and resorts. They buy hunting clothes and those goofy hunting hats with sayings that are sometimes funny and always a conversation piece. On average, each hunter spends $1,896 per year on hunting, which is 5.5% of the typical wage earner’s annual income. These expenditures then “ripple” through the economy generating three times more impact for the U.S. economy. For many communities, hunting dollars keep them afloat. Hunters also pay a truckload of special excise taxes. The Wildlife Restoration Fund under the Pittman-Robertson legislation collects these excise taxes on certain hunting equipment and apportions them to state natural resource agencies for conservation and education, which includes habitat restoration, shooting ranges, wildlife research and more. For fiscal year 2002, this program delivered more than $481 million to the states and territories of the United States , with more than $292 million of it for sport fish restoration and more than $188 million of it for wildlife restoration. Together, hunters and anglers may very well be the most important source of conservation funding in the United States . [129]

Even if it were true that the State Department of Natural Resources or Department of Game and Fish listens more to the pro-hunting lobby because they get their funding from dollars raised by the Pittman-Robertson Act [130] , the environmental policies of the respective departments will be advantageous to non-hunters alike. Time has shown that hunters have been the number one source of conservation dollars and have been some of the top advocates for the preservation and protection of our natural resources. Indeed, Under the Pittman Robertson Act [131] , States have purchased nearly 4 million acres of critical habitat, and annually manage more than 5O million additional acres for wildlife. [132] Most of the voluminous wildlife research that States have produced during the past 5O years was financed by Pittman-Robertson funds [133] and since its birth in 1937, the Pittman Robertson Act has pumped over $2 billion into building a future for the Nation's wildlife and its recreational use. [134]

Another example can be found in the conservation movement of the late 19 ^th and early 20 ^th century which was led by some outspoken pro-hunters, such as President Theodore “Teddy” Roosevelt. In Fact, President “Teddy” Roosevelt was such an avid hunter that he wrote numerous books of his hunting adventures and was also a co-founder of the Boone and Crocket Club. [135] A biography of Teddy Roosevelt writes that:

His specific achievements are numerous. Perhaps his greatest contribution was his work for conservation. During his tenure in the White House from 1901 to 1909, he designated 150 National Forests, the first 51 Federal Bird Reservations, 5 National Parks, the first 18 National Monuments, the first 4 National Game Preserves, and the first 21 Reclamation Projects. Altogether, in the seven-and-one-half years he was in office, he provided federal protection for almost 230 million acres, a land area equivalent to that of all the East coast states from Maine to Florida . [136]

Even today, numerous pro-hunting organizations, like Ducks Unlimited, Pheasants Forever, Quail Unlimited, that National Wild Turkey Foundation, Whitetails Unlimited, the Rocky Mountain Elk Foundation, the Boone and Crocket and Pope and Young clubs, etc., are lobbying and funding many conservation and preservation activities, such as reintroducing numerous wildlife species like the buffalo, rocky mountain elk, antelope or pronghorn, waterfowl, pheasant, turkey, mountain lions, wolves, and by purchasing million of acres of land as wildlife sanctuaries and to protect important wetlands. For example, Ducks Unlimited, a pro-hunting organization, “has provided more than 9.4 million acres of valuable nesting, brood-rearing, staging, migration, and wintering habitat.” [137]   Furthermore, “[s]cientific evaluations of DU projects have proven that the habitat we have provided has increased the annual production of waterfowl and provided valuable resources throughout the year that increase survival and reproductive potential.” [138]   Moreover, due to their programs, “all but a few species of prairie-nesting ducks have made strong recoveries in the late 1990's. In addition, most populations of geese have increased during this same period.” [139]

Additionally, another pro-hunting organization, the Rocky Mountain Elk Foundation, has been instrumental in reintroducing elk to different areas of the United States and in protecting valuable habitat. The Rocky Mountain Elk Foundation mission is “ to ensure the future of elk, other wildlife and their habitat.” [140] Moreover, the Rocky Mountain Elk Foundation is committed to:

Conserving, restoring and enhancing natural habitats; Promoting the sound management of wild, free-ranging elk, which may be hunted or otherwise enjoyed; Fostering cooperation among federal, state and private organizations and individuals in wildlife management and habitat conservation; and Educating members and the public about habitat conservation, the value of hunting, hunting ethics and wildlife management. [141]

The foundation reports that in 2002 alone the foundation impacted, with cumulative efforts, 1,170 acres per day, in other words a total of 427,886 acres, or 668 square miles of prime elk habitat were protected. [142]

 

Conclusion

The conflict between hunters and organizations or individuals whom do not hunt but are concerned about the environment and our natural resources and wildlife is really not a conflict at all. Each group desires the same result, namely the protection of our natural resources and wildlife for the future use and enjoyment of the next generations. The respective state agency which has the delegated duty of managing such complex ecosystems and natural resources is the best actor who can determine the appropriate policies, means and methods to obtain such result. Thus, a broad, general delegation of power to such an agency is not an unconstitutional delegation of legislative authority. Rather, such delegation meets the “intelligible principle” requirements.  

The Pitman-Robinson Act [143] has tremendously helped every state to protect natural areas, to preserve ecosystems, to reintroduce and maintain healthy wildlife populations and to generally increase our natural resources. Even if it were true that the State’s Departments of Natural Resources or Departments of Game and Fish listened more to the pro-hunting lobby because they get a majority of their funding from dollars raised by the Pitman-Robinson Act , [144] the environmental policies of the respective departments will also be advantageous to non-hunters alike. Hunters have been at the forefront of this protection and conservation movement. These movements have been advantageous and continue to be advantageous to non-hunters alike.