Analysis: Federal law preempts Alaska’s wildlife management statute

Submitted by Doreen Fitzgerald
Phone: 907-474-5042
01/03/08

A new legal analysis finds that Alaska’s wildlife management statute, enacted in 1994, directly conflicts with the management mandates laid out by Congress in the National Park Service Organic Act and the Alaska National Interest Lands Conservation Act.

"This direct conflict is currently preventing the National Park Service from achieving the goals set out by Congress," said authors Julie Lurman and Sanford Rabinowitch in a paper published in the December 2007 issue of the Alaska Law Review. Lurman is an attorney and assistant professor of natural resources law and policy at the University of Alaska Fairbanks School of Natural Resources and Agricultural Sciences; note that she is now Julie Joly. Rabinowitch is a subsistence manager with the National Park Service in Alaska.

The goal of the state’s wildlife management statute, AS 16.05.255, is to maintain an artificially high level of prey animals to meet the needs of all hunters in the state. The authors conclude that this intensive management goal is "completely incongruous to the goals of the Organic Act and the ANILCA," which are to maintain natural and healthy populations and processes.

"Our analysis shows that regulations enacted by the state to meet or further the goals of intensive management are, when they directly affect National Park Service lands, likely to discourage, complicate or thwart the Park Service’s ability to meet the goals of the Organic Act and the ANILCA," Lurman said. "The stark differences in the animating legislation of the state and the National Park Service have led to misunderstandings on the part of both the hunting and conservation communities, as well as the management agencies themselves."

"We argue that the state’s intensive management statute, as well as other intensive management activities not specifically carried out under the intensive management statute, are preempted on Park Service lands, because it is physically impossible to meet simultaneously the goals of the federal and state statutes," Lurman said.

In Hines v. Davidowitz, the Supreme Court ruled that where the state’s law stands as "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," it must be preempted.

"This is exactly the case before us in Alaska," the paper states.

According to the analysis, although wildlife management is an area of law typically left to state control, it is also true that the property clause of the U.S. Constitution gives the federal government the right to legislate concerning its land and the wildlife thereon. Ultimately, if the property clause and the supremacy clause are to be given full effect, the paper argues, federal laws must trump state law even in the area of wildlife management.

Section II of the paper outlines the federal mandates for the management of wildlife on National Park Service lands in Alaska. Section III describes Alaska’s intensive management statute and the regulations derived from it. Section IV defines the theory of preemption as a result of direct conflict. Section V describes how the criteria for preemption of state law, based on a theory of direct conflict, are met by the facts in this situation.

"While this analysis may appear to support an enormous shift in responsibility among federal and state managers, in fact the balance of power remains the same," Lurman said, " because Congress has never suggested it would tolerate the coexistence of state laws that thwart their own legislative intent. However, our analysis is necessarily fact-specific, so a different state wildlife management regime might yield very different results."

Editor’s note: Although this article is published under the author name Julie Lurman, her name is now Julie Joly.

CONTACT: Julie Joly at 907-474-6794 or via e-mail at ffjjl@uaf.edu. Marmian Grimes, public information officer, at 907-474-7902 or via e-mail at marmian.grimes@uaf.edu.