26 ELR 10513 | Environmental Law Reporter | copyright © 1996 | All rights reserved

Before the Crisis: Protection of Nonendangered Wildlife From the Impacts of Resource-Development Activities

Editors' Summary: Although most talk in terms of wildlife protection seems to focus on the operation of the ESA, there are a host of other federal and state laws designed to protect wildlife from the impacts of resource-development projects—before the species become threatened or endangered. Focusing on mineral exploration and development activities on federal lands, this Article thoroughly examines the legal framework—outside the ESA—giving the agencies responsible for permitting and managing resource-development projects the authority to manage and protect nonendangered wildlife from the impacts of such projects. The Article first explores the historical power of states to regulate wildlife within their borders. Next, the Article discusses the underlying constitutional and statutory authority for federal agencies—particularly the U.S. Forest Service and the BLM—to regulate impacts to wildlife on federal lands. It analyzes how wildlife protection and management is achieved through federal land-use plans under the National Forest Management Act and FLPMA, and discusses the role played by ecosystem management. Next, the Article surveys federal species- and habitat-specific authorities for protecting and managing wildlife. It then discusses permitting requirements for mineral exploration and development activities on federal lands, and explains how, through the process, federal and state agencies can and do work together in managing permitted activities' impacts to wildlife. The Article concludes that the Forest Service and BLM have extensive authority and discretion in fashioning measures to mitigate potential wildlife impacts to nonlisted species, and that project proponents have the opportunity to work creatively with regulators to achieve mutually beneficial results.

Mr. Hardt is an attorney in the Denver, Colorado, office of Ballard Spahr Andrews & Ingersoll, where his practice focuses on public lands, environmental, and natural resources permitting and litigation.

[26 ELR 10513]

Introduction

Wildlife issues permeat nearly every aspect of environmental permitting for resource-development projects—whether it be requirements associated with mitigating land disturbance, protecting water or air quality, or obtaining water rights.¹ In the wake of the U.S. Supreme Court's decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,² as well as ongoing legislative reform efforts, most legal commentary addressing the relationship between resource-development activities and wildlife-protection policy has focused on the workings ofthe Endangered Species Act (ESA).³ There is, however, a broad spectrum of other pertinent legislation and regulation addressing protection of not only species listed as threatened or endangered under the ESA, but also species represented by healthy populations. Under these laws, federal and state agencies typically have the authority to influence the manner in which mineral-development activities are conducted in order to protect wildlife⁴ and wildlife [26 ELR 10514] habitat.⁵ As these agencies increasingly take a more holistic approach to managing natural resources and environmental impacts under the rubric of "ecosystem management," their non-ESA wildlife-management authorities frequently influence the course of natural-resource development projects.

This Article outlines the overall regulatory framework—outside the ESA—within which wildlife issues are addressed by agencies responsible for permitting and managing resource-development projects. Focusing on mineral exploration and development activities on federal lands, the Article examines federal and state authority to manage and protect nonendangered wildlife from the impacts of such projects. It discusses the agencies responsible for addressing wildlife issues, the extent of their authority to manage mineral exploration and development activities to protect wildlife, the breadth of discretion the agencies have in fashioning appropriate mitigation measures, and the opportunities available for project proponents to influence how the agencies exercise their discretion.

In short, the responsible agencies have substantial authority and broad discretion to manage impacts to non-ESA wildlife species. This allows resource-development project proponents an opportunity to design projects proactively to provide for appropriate levels of wildlife protection without disrupting the projects' economic feasibility.

Historical State Power to Regulate Wildlife

Historically, the law recognized each state as being primarily responsible for managing wildlife found within its borders. Under the state-ownership doctrine, a state was deemed to own all wildlife within its boundaries—to the extent wildlife was capable of ownership—in trust for its people.⁶ Early cases held that based on their ownership of wildlife and their inherent police powers, states had broad authority to regulate the use of wildlife, unrestricted by the Commerce Clause of the U.S. Constitution.⁷ These cases left open the issue of whether the federal government could regulate the use of wildlife in a manner inconsistent with state desires.⁸

When faced with federal wildlife legislation enacted in the early 20th century, however, courts uniformly concluded that the state-ownership doctrine was a legal fiction and that Congress had broad constitutional authority to regulate wildlife independent of the states' desires. For example, in Missouri v. Holland,⁹ the Supreme Court upheld the 1918 Migratory Bird Treaty Act (MBTA),¹⁰ over Missouri's objections, as an appropriate means for implementing a 1916 treaty with Great Britain that established closed hunting seasons and other protections for migratory birds. The Court stated:

No doubt it is true that as between a State and its inhabitants the State may regulate the killing and sale of such birds, but it does not follow that its authority is exclusive of paramount powers. To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone; and possession is the beginning of ownership.¹¹

More recent cases have held that states do not own wildlife within their boundaries, and the Supreme Court has since expressly overruled cases that espoused the state-ownership doctrine.¹² Under current judicial interpretations, wildlife is owned by no one until reduced to possession.¹³ Although some courts and state statutes still speak in terms of state ownership of wildlife,¹⁴ these declarations should be considered merely shorthand expressions of the state's expansive authority to manage wildlife for the benefit of its citizens.

While the state-ownership doctrine is dead-letter law, states still have broad power to manage wildlife pursuant to their general police powers.¹⁵ But those powers are not exclusive of the federal government's power to act in this area.

Federal Constitutional Authority to Regulate Wildlife

Since the early part of this century, the Supreme Court has recognized three constitutional sources of federal authority to regulate wildlife: (1) the Treaty Clause, together with the Necessary and Proper Clause; (2) the Property Clause; [26 ELR 10515] and (3) the Commerce Clause. These provide Congress with extremely broad powers to enact legislation governing the management and protection of virtually all wildlife species.

The Treaty Clause and the Necessary and Proper Clause

The Treaty Clause grants the President the "power, by and with the Advice and Consent of the Senate, to make Treaties."¹⁶ The United States has frequently exercised this authority by entering into treaties and other international agreements designed to protect certain wildlife species and the environment.¹⁷ The Necessary and Proper Clause authorizes Congress "to make all Laws that are necessary and proper for carrying into Execution … Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."¹⁸ The provision grants Congress the power to enact legislation implementing international treaties entered into by the United States. Specifically, Congress can enact wildlife legislation designed to ensure that the United States fulfills its treaty obligations.¹⁹

The Property Clause

The Property Clause grants Congress the "power to dispose of, and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."²⁰ The provision has been held to authorize Congress to enact legislation to protect, and to regulate the taking of, wildlife found on federal lands²¹—even without a showing that a given law is necessary to protect those lands.²²

The leading case addressing the scope of the Property Clause is Kleppe v. New Mexico.²³ In Kleppe, New Mexico argued that the federal government had authority to control wild horses and burros on federal public lands under the Property Clause only to the extent necessary to protect the public lands. Consequently, the state claimed, the Wild Free-Roaming Horses and Burros Act²⁴ was unconstitutional because it regulated animals independent of their impacts to the public lands.²⁵ Rejecting this argument, the Supreme Court held that "the 'complete power' that Congress has over public lands necessarily includes the power to regulate and protect the wildlife living there."²⁶

Some courts have held that the power granted by the Property Clause is so expansive that it authorizes federal regulation of activities on private property in order to protect wildlife on federal lands.²⁷ The Supreme Court has not yet addressed this issue.²⁸

The Commerce Clause

The Commerce Clause grants Congress the power "to regulate Commerce with Foreign Nations, and among the several States, and with the Indian tribes."²⁹ It has been interpreted to authorize Congress to regulate any activity that may affect commerce.³⁰ Such authority allows for broad federal regulation of wildlife and wildlife habitat, either because the species at issue migrates across state boundaries or because people travel across state boundaries to observe or hunt the species.³¹

Modern Interplay Between Federal and State Wildlife Authorities

Despite the broad constitutional sources of authority for federal regulation of wildlife discussed above, states retain the power to regulate and manage wildlife, unless preempted by constitutionally authorized federal legislation.³² As discussed [26 ELR 10516] below, Congress has rarely preempted all state authority to manage wildlife, even on federal lands.³³ Instead, Congress has created a statutory framework governing many aspects of wildlife management and protection that allows the states to play a significant role and, generally, encourages cooperation among the federal land management agencies, the U.S. Fish and Wildlife Service (FWS),³⁴ and state wildlife agencies.³⁵

It is often said that on federal lands, federal land managers manage wildlife habitat, while states manage wildlife populations. Mineral-development projects generally have the potential for significantly impacting wildlife habitat, rather than directly taking wildlife. Thus, federal land managers typically play a substantial role in addressing wildlife-related impacts in any permitting effort for a minerals project on federal land.

Underlying Statutory Authority of Federal Land Managers to Regulate Impacts to Wildlife

Management of surface resources—including wildlife—within each of the four main federal land management systems is governed by a separate set of statutory mandates and guidelines. This section discusses the respective frameworks for the two largest systems—the National Forest System and Bureau of Land Management (BLM) lands³⁶—and how the frameworks address wildlife management and protection.

The National Forest System and BLM lands are managed under the general principles of multiple use and sustained yield. Under the multiple-use doctrine, federal land managers must consider the implications that resource-management decisions have on a variety of individual resources, including wildlife. However, the managers ultimately have very broad discretion as to what balance of resource uses to allow and what wildlife management and protection measures to implement. As wildlife management has increasingly focused on habitat management, and not just wildlife harvesting, the U.S. Forest Service and the BLM have come to play a dominant role in protecting wildlife from other uses of lands under their jurisdictions.³⁷

The National Forest System

Since 1905, when jurisdiction over the national forests was transferred from the U.S. Department of the Interior (DOI) to the U.S. Department of Agriculture (USDA), responsibility for managing natural resources on the national forests has been split between the two agencies.³⁸ The DOI—in particular, the BLM—is responsible for managing hard rock and leasable mineral resources, while the USDA—through the Forest Service—is responsible for managing and protecting surface resources, including wildlife habitat.³⁹ Accordingly, while BLM approval is necessary to conduct certain mineral exploration and development activities on national forest lands, the Forest Service has primary responsibility for ensuring that those activities do not impair wildlife resources on those lands.

The Forest Service's underlying authority stems mainly from three statutes: the Organic Act of 1897,⁴⁰ the Multiple-Use and Sustained-Yield Act of 1960 (MUSYA),⁴¹ and the National Forest Management Act of 1976 (NFMA).⁴² Each gives the Forest Service broad authority to manage surface resources within the National Forest System, and the MUSYA and the NFMA expressly direct the Forest Service to consider wildlife resources.

The Organic Act of 1897. At the time the Organic Act was enacted, federal policy paid little attention to protecting wildlife resources on federal lands; this was generally considered to be a matter of state responsibility.⁴³ The Organic Act was [26 ELR 10517] enacted primarily to curb unfettered timber cutting on forest reserves.⁴⁴

Although it does not expressly mention wildlife, the statute does grant the Forest Service broad authority to "make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction."⁴⁵ More specifically, the Act provides that persons entering national forests for purposes of prospecting for and developing mineral resources "must comply with the rules and regulations covering such national forests."⁴⁶ This broad language has been held to authorize the Forest Service to take a variety of measures designed to protect national forest surface resources.⁴⁷ Arguably, it also provides authority to manage wildlife resources.⁴⁸ For example, the Organic Act has been held to provide authority for the Forest Service's regulations governing mining operations on national forest lands, which generally require that mining operations be conducted so as to minimize adverse environmental impacts on national forest surface resources.⁴⁹

The MUSYA. While the Organic Act has long granted the Forest Service broad authority to manage national forest resources, in 1960, Congress specifically directed the Forest Service to consider wildlife values when exercising that authority.⁵⁰ The MUSYA mandates that the Forest Service manage the national forests for a variety of purposes, including "outdoor recreation, range, timber, watershed, and wildlife and fish purposes."⁵¹ The agency is to manage these resources "so that they are utilized in the combination that will best meet the needs of the American people."⁵² The Act is said to give "range, recreation, and wildlife an equal footing with timber production."⁵³

The MUSYA does not, however, mandate that the Forest Service take any particular actions regarding wildlife management. It merely requires that the agency consider the various surface-resource values identified in the statute when making natural resource management decisions.⁵⁴ Nor does the Act preempt state authority to manage wildlife on national forests, providing that "nothing herein shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish on the national forests."⁵⁵ This savings language could be used to argue that the MUSYA did not grant the Forest Service authority to regulate directly the taking of wildlife in a manner that conflicts with state law.

The NFMA. In 1976, largely in response to controversy over the Forest Service's clear-cutting practices, Congress enacted the NFMA,⁵⁶ which amended the Renewable Resources Planning Act of 1974 and established a comprehensive resource-management and planning framework for the national forests. The NFMA requires all national forest management plans to provide for multiple use and sustained yield of national forest resources and, "in particular, [to] include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness."⁵⁷ The Act's specific planning mandates are discussed later in this Article.⁵⁸

BLM Lands

The Federal Land Policy and Management Act of 1976 (FLPMA). FLPMA⁵⁹—often referred to as the BLM's "organic act"—provides that BLM lands are to be managed both "in a manner [that] recognizes the Nation's need for domestic sources of minerals" and that will protect "ecological values" and "provide food and habitat for fish and wildlife."⁶⁰

FLPMA contains very few specific, substantive directives governing BLM management decisions. Similar to the MUSYA's and the NFMA's directives to the Forest Service, FLPMA requires the BLM to manage its lands under the principles of multiple use and sustained yield, and provides that management activities be conducted in accordance with land-use plans incorporating those principles.⁶¹

The BLM and courts have interpreted FLPMA's requirement that the BLM "take any action necessary to prevent unnecessary or undue degradation of the lands"⁶² as a substantive mandate. Proposed mineral-development projects must be reviewed under this standard before receiving [26 ELR 10518] BLM approval,⁶³ and BLM regulations governing mining plans of operation are intended to serve as a vehicle for enforcing this statutory directive.⁶⁴ The Interior Board of Land Appeals (IBLA) has concluded that the BLM may order a cessation of mining operations, even after approval of a plan of operations, if needed to eliminate unnecessary and undue degradation that occurs after plan approval.⁶⁵ This standard, however, does not prohibit all environmental harm resulting from a project, only environmental harm that is greater than would normally occur when the project is undertaken by a prudent operator.⁶⁶ Consequently, excessive impacts to wildlife could arguably serve as the basis for a finding of unnecessary and undue degradation.

Although FLPMA grants the BLM broad authority to manage BLM lands and substantial discretion in determining appropriate management measures, Congress expressly avoided any wholesale preemption of state authority to manage wildlife on BLM lands:

Nothing in this Act shall be construed as authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands or on lands in the National Forest System and adjacent waters or an enlarging or diminishing the responsibility and authority of the States for management of fish and resident wildlife. However, the Secretary concerned may designate areas of public land and of lands in the National Forest System where, and establish periods when, no hunting or fishing will be permitted for reasons of public safety, administration, or compliance with provisions of applicable law.⁶⁷

At least one court has held that pursuant to this provision, Congress "assigned the states primary responsibility for the management of wildlife programs within their boundaries."⁶⁸

Wilderness Areas

National forest and BLM lands within the National Wilderness Preservation System remain under the jurisdiction of the original managing agency; however, the Wilderness Act of 1964⁶⁹ greatly restricts the Forest Service's and BLM's discretion in determining how to manage resources on these lands. Wilderness areas are to be managed to preserve the "wilderness character" of the area.⁷⁰ The Act defines "wilderness," in part, as "an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain."⁷¹ Commercial activities, roads, motor vehicles, motorized equipment, and issuance of new mineral-development rights are generally prohibited.⁷²

Under Forest Service regulations, "natural ecological succession will be allowed to operate freely to the extent feasible" in designated wilderness areas.⁷³ Although this "natural succession" requirement would appear to dictate a hands-off approach to wildlife management, protection of habitat for wildlife—which is a part of the earth's "community of life"—is, by definition, a primary management objective in wilderness areas. Furthermore, wildlife values are also given substantial protection in wilderness study areas.⁷⁴ Despite these expansive federal mandates, however, the Wilderness Act does not preempt state authority to manage wildlife within designated wilderness areas.⁷⁵

Federal Land-Use Plans

As discussed above, the MUSYA, the NFMA, and FLPMA prescribe few specific, substantive requirements governing wildlife protection and management. Under those statutes, the Forest Service and the BLM must consider wildlife values when making land and resource management decisions, but the agencies are not required to provide any particular level of wildlife protection. The NFMA and FLPMA do require, however, that such decisions be made in the context of comprehensive land-use plans, which generally contain two types of directives: (1) goals and objectives, which are not necessarily enforceable standards, but are intended to inform site-specific management decisions; and (2) prescriptions and standards, which dictate or prohibit specific on-the-ground activities.⁷⁶ Once a federal land-use plan is properly adopted, all resource-use activities must be consistent with the plan, unless it is amended to allow the proposed use.⁷⁷ Plans generally contain both objectives and prescriptions addressing wildlife management and protection.

BLM Resource Management Plans (RMPs)

FLPMA provides little guidance as to the contents of BLM land-use plans, which are generally referred to as RMPs.⁷⁸ Similarly, BLM regulations governing preparation of RMPs contain few substantive directives.⁷⁹ Consequently, the contents and degree of specificity of RMPs have varied markedly.

FLPMA does direct the BLM, as part of the planning process, to "give priority to designating and protecting areas [26 ELR 10519] of critical environmental concern" (ACECs).⁸⁰ To qualify as an ACEC, the area must possess substantial resource values in need of protection.⁸¹ Fish and wildlife resources are among these values.⁸² The BLM uses ACECs to highlight areas needing special management attention and to impose additional management prescriptions.⁸³ RMPs frequently designate ACECs based on the presence of important wildlife habitat or sensitive species, and impose specific mitigation measures for resource-development activities in these areas.⁸⁴

RMPs may contain criticial decisions relevant to mineral-development activities, including determinations as to which lands will be open to mineral leasing, what types of stipulations will be attached to federal mineral leases, and what mitigation measures may be required for development of locatable minerals.⁸⁵ These decisions are often driven, in large part, by wildlife issues.

In addition to RMPs, the BLM may prepare a variety of activity-level plans, which provide more specific direction for certain management activities.⁸⁶ Among these are habitat-management plans, which identify the wildlife-habitat management activities the BLM will implement to achieve RMP objectives.⁸⁷ Habitat-management plans are to apply principles of ecosystem management⁸⁸ to establish specific prescriptions for managing wildlife habitat, such as direct habitat-improvement measures and mitigation measures for other resource actions, designed to achieve desired wildlife objectives.⁸⁹

Forest Service Land and Resource Management Plans (LRMPs)

The NFMA provides substantially more guidance to the Forest Service as to the contents of its land-use plans, which are generally known as LRMPs.⁹⁰ The Act directs the Forest Service to promulgate regulations that require identification of the suitability of lands for resource-management activities.⁹¹ Moreover, the Forest Service is required to establish guidelines for its LRMPs that "provide for diversity of plant and animal communities based upon the suitability and capability of the specific land area in order to meet overall multiple-use objectives."⁹²

The Forest Service's "biodiversity" planning obligations operate independently of any requirements under the ESA. In its LRMPs, the Forest Service must still provide for viable populations of species regardless of whether they are listed under the ESA.⁹³ It should be kept in mind that the obligations expressly apply only to LRMPs and regional planning documents, and some courts have held that they do not provide a basis for directly challenging individual project decisions.⁹⁴

Regulations implementing the NFMA's biodiversity directive provide that "fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area."⁹⁵ The regulations establish two more specific requirements to satisfy the "viable population" mandate: (1) "habitat must be provided to support, at least, a minimum number of reproductive individuals," and (2) "habitat must be well distributed so that those individuals can interact with others in the planning area."⁹⁶

Though these directives appear to be expansive, the regulations do qualify them. For example, the regulations provide that "forest planning shall provide for diversity of plant and animal communities and tree species consistent with the overall multiple-use objectives of the planning area."⁹⁷ Similarly, management prescriptions contained in LRMPs "where appropriate and to the extent practicable, shall preserve and enhance the diversity of plant and animal communities, including endemic and desirable naturalized plant and animal species, so that it is at least as great as that which would be expected in a natural forest."⁹⁸

To implement the biodiversity requirements, the Forest Service's planning regulations require the agency to select management indicator species (MIS), which are managed and monitored to provide for the overall health of wildlife populations within the national forest.⁹⁹ MIS are to be selected "because their population changes are believed to indicate the effects of management activities," and must include, where appropriate, listed threatened and endangered species; species with special habitat needs that may be influenced significantly by management activities under the plans; species commonly hunted, fished, or trapped; nongame species of special interest; and additional species [26 ELR 10520] whose population levels reflect the effects of management activities on other species or water quality.¹⁰⁰

In developing LRMPs, the Forest Service must also develop and evaluate alternative plans "in terms of both amount and quality of habitat and of animal population trends of the [MIS]."¹⁰¹ LRMPs are to establish objectives for the maintenance and improvement of habitat for MIS "to the degree consistent with overall multiple use objectives" of the plan.¹⁰² Moreover, population trends for the MIS are to be monitored during plan implementation to determine relationships between those trends and habitat changes.¹⁰³ The Forest Service may generally use MIS to monitor whether wildlife diversity is being adequately provided for, but the agency may not manage wildlife habitat exclusively for MIS in a manner that would adversely affect the health of other wildlife populations.¹⁰⁴

The biodiversity provisions have been the subject of extensive litigation.¹⁰⁵ The "spotted owl" litigation in the Pacific Northwest originally demonstrated that the provisions place mandatory obligations on the Forest Service and can have substantial teeth.¹⁰⁶ It has been held that the provisions place a "duty" on the Forest Service to protect wildlife.¹⁰⁷

Courts have generally refused, however, to compel the Forest Service to apply specific methodologies to provide for diversity and have given substantial deference to the agency's efforts to satisfy these requirements, so long as the agency has made a reasonable effort to provide for species diversity.¹⁰⁸ Courts have also consistently rejected any notion that the diversity provisions require the Forest Service to provide large areas of habitat that replicate pristine forest conditions.¹⁰⁹ Moreover, recognizing the regulations' "multiple use" qualifier,¹¹⁰ some courts have held that the Forest Service is not required to place biodiversity considerations above other multiple uses.¹¹¹ Consequently, while areas inhabited by listed endangered species must generally be managed for the dominant use of species protection, the same is not true for other species that are treated as part of the multiple-use mix.

Ecosystem Management

Ecosystem management is the new wave among federal land managers and the environmental community. While the concept eludes precise definition, it can generally be summarized as a management approach that recognizes the ecological links among the array of biological and physical resources that exist on this planet, and that attempts to manage those resources in a comprehensive manner that preserves those basic links.

There is little doubt that the federal land managers' statutory and regulatory directives provide ample authority to develop resource-management strategies and prescriptions on an ecosystem basis, provided that the full array of multiple uses are considered.¹¹² In fact, to some extent, federal land managers are actually required to manage federal lands and resources under an ecosystem-management approach.¹¹³ For example, the Forest Service's regulations require that planning be based on a recognition that national forests "are ecosystems and their management for goods and services requires an awareness and consideration of the interrelationships among plants, animals, soil, water, air, and other environmental factors within such ecosystems."¹¹⁴

Federal land managers are beginning to exercise their authority more aggressively to implement ecosystem-management strategies that provide for comprehensive management of wildlife species and habitat across traditional jurisdictional and administrative boundaries, and to address land-use impacts to wildlife on broad geographic bases.¹¹⁵ As a result, the agencies have moved their focus from merely augmenting the population of game species toward comprehensively managing surface resources to provide appropriate habitat for a variety of wildlife species. A prime example of this has been the Forest Service's and BLM's efforts to manage fisheries in the Pacific Northwest.

[26 ELR 10521]

Initiatives Regarding Fisheries in the Pacific Northwest

On February 24, 1995, the Forest Service and the BLM issued a decision notice, commonly known as PACFISH, adopting interim strategies for managing anadromous fish-producing watersheds on federal lands in eastern Oregon and Washington, Idaho, and portions of California.¹¹⁶ PACFISH is intended to provide "an ecosystem-based, aquatic habitat and riparian-zone management strategy" for Pacific salmon, steelheads, and sea-run cutthroat trout.¹¹⁷ PACFISH establishes management objectives and prescriptions that apply to "all proposed or new projects and activities and ongoing projects that pose an unacceptable risk."¹¹⁸ Those objectives and prescriptions amend 15 LRMPs and 7 RMPs.¹¹⁹

A critical component of the PACFISH guidelines is the directive that the Forest Service and the BLM establish riparian-habitat conservation areas where "riparian-dependent resources" will receive primary management emphasis.¹²⁰ Resource-development activities—including mineral-development activities—proposed for these areas are subject to specific restrictions and mitigation requirements.¹²¹

On July 28, 1995, the Forest Service adopted a similar set of interim management guidelines, commonly known as INFISH, designed to protect habitat and populations of native inland fish across 25 million acres of national forest land in eastern Washington and Oregon, Idaho, western Montana, and portions of Nevada.¹²²

The PACFISH and INFISH guidelines are interim measures while the Forest Service and the BLM prepare permanent guidelines pursuant to the Interior Columbia Basin Ecosystem Management Project. As part of that project, the agencies are currently preparing two environmental impact statements (EISs) evaluating alternative ecosystem-based strategies for managing federal lands in the Columbia River Basin east of the Cascade Mountains.¹²³ These strategies will address not only fisheries issues, but means for managing a wide range of renewable resources on BLM and Forest Service lands within the region on an ecosystem basis.¹²⁴ Preserving wildlife diversity will be a predominant objective of this effort.¹²⁵ If adopted, the guidelines would amend all LRMPs and RMPs in the region. This effort at broad-scale ecosystem planning has predictably engendered substantial political controversy; however, Congress has recently given the agencies funding toward completing the effort.¹²⁶

Greater Yellowstone Ecosystem Efforts

Federal land managers have been exploring comprehensive ecosystem management on other fronts as well. For example, the National Park Service (NPS) and Forest Service have delineated the Greater Yellowstone Ecosystem (or "area" in Forest Service parlance) as encompassing the 11.7-million-acre, tri-state region surrounding Yellowstone National Park, which includes parts of 6 national forests, 2 national parks, and several parcels of BLM lands, as well as state and privately owned lands.¹²⁷

In the late 1980s and early 1990s, the NPS and Forest Service attemptedto establish management objectives and guidelines for comprehensively managing federal lands in the Greater Yellowstone Ecosystem.¹²⁸ Those efforts were driven, to a large extent, by wildlife considerations, including a desire to manage effectively wide-ranging species, such as grizzly bears, bison, and wolves. Like the Columbia River effort, the Yellowstone effort came under intense political scrutiny; unlike the Columbia River project, the Yellowstone project was largely side-tracked by political pressure.¹²⁹ Currently, the concept serves mainly as a basis for coordinating baseline data gathering by the agencies.

Federal Species-Specific and Habitat-Specific Authorities

In addition to the federal land management agencies' basic "organic act" authorities, there are statutes authorizing—in fact, mandating—certain species- and habitat-specific measures to manage and protect wildlife.

[26 ELR 10522]

The MBTA

The MBTA¹³⁰ was enacted in 1918 to implement a treaty with Great Britain and has been amended several times to incorporate provisions of subsequent treaties with other countries. The Act makes it unlawful, except as specifically authorized, to "pursue, hunt, take, capture [or] kill" any migratory bird, or egg or nest thereof.¹³¹ The FWS maintains a list of migratory birds that are subject to protection under the Act.¹³² The statute establishes criminal liability, which can result in substantial fines and imprisonment.¹³³

Violations may occur as a result of unintended direct takings of migratory birds, such as when a protected bird is killed by coming into contact with toxic substances placed in the environment.¹³⁴ While many courts have held that the MBTA provides for strict liability,¹³⁵ some courts have indicated that an inadvertent taking of a migratory bird is not punishable under the Act if the party acted with reasonable care and the taking was not reasonably foreseeable.¹³⁶

Some courts have held that the MBTA's take prohibition, unlike the ESA's, is not violated by activities that only modify or degrade migratory bird habitat but do not result in a direct taking of, or harm to, listed birds or nests.¹³⁷ For example, the IBLA has held that BLM approval of a mining plan of operations authorizing a tailings pond in an area inhabited by waterfowl did not constitute a taking in violation of the MBTA.¹³⁸ Nevertheless, substantial liability may result if project operations ultimately cause injury or death to listed birds.¹³⁹

The Bald and Golden Eagle Protection Act (BGEPA)

The BGEPA¹⁴⁰ prohibits the taking of bald or golden eagles or their nests, except in limited circumstances. The statute defines "take" broadly to include "disturb" as well as "wound, kill, capture, trap, collect, and molest."¹⁴¹ The Act provides for civil penalties of up to $ 5,000 for each violation, and criminal penalties of up to $ 5,000 and one year in prison for each knowing or reckless violation.¹⁴²

The IBLA has held that the BGEPA's take prohibition, like the MBTA's, is not implicated by mere habitat disturbance.¹⁴³ In order to avoid an unlawful taking once operations have begun, the presence of protected eagles or nests in the project area may dictate limitations on operations or require substantial mitigation measures. Under the Act, the operator of a resource-development operation may obtain a permit from the FWS authorizing the removal of inactive golden eagle nests that may interfere with mining operations, thereby eliminating the risk of a violation from damaging the nest.¹⁴⁴

Bald and golden eagles are migratory birds and, thus, are protected by both the MBTA and the BGEPA.¹⁴⁵ The bald eagle is also protected under the ESA.¹⁴⁶ Consequently, a party who kills or harms a bald or golden eagle may be subject to prosecution under several statutes.¹⁴⁷ Unlike the ESA, however, neither the MBTA nor the BGEPA contains a citizen-suit provision, and it is unlikely that a nongovernmental entity would have standing to pursue a direct action against a mineral developer for violations of those statutes.¹⁴⁸

Wetlands Protection

Wetlands provide essential habitat for several wildlife species.¹⁴⁹ Wetlands protection is addressed, in large part, by § 404 of the Federal Water Pollution Control Act (FWPCA),¹⁵⁰ which requires a permit from the U.S. Army Corps of Engineers (the Corps) authorizing the discharge of any dredged or fill material into waters of the United States.¹⁵¹ The term "waters of the United States" has been broadly defined to include wetlands that are hydrologically connected to streams, rivers, or lakes, and isolated wetlands that may be used by migratory birds.¹⁵²

Before issuing a § 404 permit, the Corps must determine that issuance is not contrary to the public interest, which [26 ELR 10523] requires consideration and balancing of various factors, including wildlife values.¹⁵³ The Corps must also comply with the U.S. Environmental Protection Agency's (EPA's) § 404(b)(1) guidelines, which require consideration of the impacts of the proposed discharge on fish and wildlife resources, and evaluation of whether there is any practicable alternative that would have fewer environmental impacts.¹⁵⁴ EPA may veto a decision by the Corps to issue a permit if EPA concludes that the discharge will have unacceptable adverse effects on municipal waters, shellfish beds, fishery areas, wildlife, or recreation areas.¹⁵⁵

Federal Permitting Requirements for Mineral Exploration and Development Activities

While the laws, regulations, and policies discussed above establish the Forest Service's and BLM's authority to manage wildlife-related impacts, the permitting framework discussed below establishes theactual mechanisms by which the agencies identify and address wildlife issues associated with particular mineral exploration and development projects.

National Environmental Policy Act (NEPA) Requirements

A proposed mineral exploration or development project that requires federal approval will implicate NEPA,¹⁵⁶ which will often be the focus of the permitting process.¹⁵⁷ While NEPA does not expressly contain any substantive requirement to protect wildlife, it clearly requires federal permitting agencies to evaluate the potential impacts of proposed projects on wildlife.¹⁵⁸ The adequacy of a federal agency's evaluation of potential impacts of a proposed project on wildlife is frequently the subject of NEPA litigation.¹⁵⁹

The NEPA process often serves as the critical tool for identifying potential wildlife issues related to a proposed project. The information generated is then used to fashion appropriate wildlife mitigation measures pursuant to the standards established under the organic acts, land-use plans, and other substantive permitting authorities.¹⁶⁰ In short, although NEPA does not require federal land managers to protect wildlife, it has been one of the most effective wildlife-protection statutes on the books.

Plans of Operations for Hard-Rock Mining

For any hard-rock mining activities involving more than minimal disturbance of federal surface resources, the operator must obtain approval of a plan of operations from the responsible federal land management agency.¹⁶¹ Although the General Mining Law of 1872¹⁶² does not address wildlife issues, the potential for impacts to wildlife is often a key consideration by the BLM and the Forest Service when determining whether to approve a proposed plan of operations and whether to require mitigation measures.

The hard-rock permitting regulations contain specific mandates that mining operations be conducted in a manner that does not cause excessive impacts to wildlife, but the regulations leave it to the federal land managers' discretion to establish appropriate site-specific protective measures. For example, the Forest Service's regulations state that "all operations shall be conducted so as, where feasible, to minimize adverse environmental impacts on National Forest surface resources."¹⁶³ As to wildlife, a mine operator "shall take all practicable measures to maintain and protect fisheries and wildlife habitat which may be affected by the operations."¹⁶⁴ Both provisions limit the Forest Service's authority to mandate wildlife-protection measures, in that the agency can require the operator to take only those measures that are "practicable" or "feasible."¹⁶⁵

Consistent with FLPMA's directive, the BLM's regulations require that all mining operations be conducted to prevent unnecessary and undue degradation of BLM lands.¹⁶⁶ The regulations do not provide any additional guidance as to what measures may be required to protect [26 ELR 10524] nonlisted wildlife species.¹⁶⁷ However, because only "unnecessary and undue" degradation of resources is prohibited, some impacts to nonlisted wildlife may be allowed if they are a necessary part of a proposed mine operation.¹⁶⁸

The DOI recently devised another tool that might be used to limit substantially mining activities in areas with high value for wildlife: the comparative values test. Under this test, when federal lands encompassed by an unpatented mining claim have value for nonmining purposes, such as wildlife and recreation, the value of those nonmining uses may be balanced against the value of the land for mining purposes when determining whether the mining claim is valid—even if the claimant can satisfy the traditional test for a discovery of valuable minerals.¹⁶⁹ The IBLA is currently considering whether the DOI may lawfully apply the comparative values test,¹⁷⁰ and the U.S. Court of Appeals for the Ninth Circuit recently indicated that it would not uphold use of such a test.¹⁷¹

Federal Leasable Minerals

Under the Mineral Leasing Act,¹⁷² the Forest Service and the BLM have broad discretion in deciding which lands will be issued leases for minerals such as coal, oil, and gas.¹⁷³ In determining which lands are suitable for mineral leasing, the agencies often give substantial weight to wildlife considerations.¹⁷⁴ For example, under the BLM's regulations governing suitability criteria for coal leasing, lands providing important wildlife habitat for many species are generally deemed unsuitable.¹⁷⁵

Once a lease is issued, operations may be subject to substantial mitigation measures designed to protect wildlife.¹⁷⁶ Many of these may be established in the applicable federal land-use plan, and additional measures may be required as part of the site-specific analysis for proposed operations.¹⁷⁷ The responsible surface-managing agency—either the Forest Service or the BLM—has broad discretion to determine what activities may proceed on a federal mineral lease, and the lessee should take a proactive approach to negotiating reasonable means for addressing wildlife issues implicated by its development of the desired minerals.¹⁷⁸

Other Federal Land-Use Permitting Requirements

In addition to any minerals leases, plans of operations, or drilling permits that may be required, other federal permits or authorizations, such as rights-of-way or special-use permits for roads or other ancillary facilities, may be necessary before a proposed mineral-development project may go forward. Before granting such additional authorizations, federal land managers must consider the potential wildlife impacts associated with these land uses and may impose appropriate mitigation measures.

For example, the Forest Service's special-use regulations governing issuance of rights-of-way and other similar permits on national forest lands require that every special-use authorization contain terms and conditions that will "minimize damage to fish and wildlife habitat."¹⁷⁹ Similarly, FLPMA and BLM regulations require that all rights-of-way and other land-use authorizations contain conditions or stipulations that will control or prevent damage to environmental values, including fish and wildlife habitat.¹⁸⁰

Federal/State Cooperation in Managing Wildlife on Federal Lands

Regulatory Divisions of Responsibility

Both the Forest Service and the DOI have attempted to provide some guidance on the jurisdictional division that Congress has established for managing wildlife on federal lands. The Forest Service's regulations reflect the traditional dichotomy between managing wildlife habitat and managing wildlife populations, but give the agency a dominant role on both fronts by requiring that it

determine the extent to which national forests or portions thereof may be devoted to wildlife protection in combination with other uses and services of the national forests, and, in cooperation with the Fish and Game Department or other constituted authority of the State concerned, … formulate plans for securing and maintaining desirable populations of wildlife species, ….¹⁸¹

In deference to the traditional state role, however, the [26 ELR 10525] Forest Service is also required to cooperate with state game officials "in the planned and orderly removal in accordance with the requirements of State laws of the crop of game, fish, fur-bearers, and other wildlife on national forest lands."¹⁸²

DOI regulations acknowledge that states have "primary authority and responsibility for management of fish and resident wildlife" on BLM lands.¹⁸³ But those regulations also reiterate that it is the BLM that "has custody of the land itself and the habitat upon which fish and resident wildlife are dependent" and that "management of the habitat is a responsibility of the Federal Government."¹⁸⁴ The BLM Manual provides that management of wildlife on BLM lands should be a joint effort, with the BLM managing habitat and state wildlife agencies managing the resident species.¹⁸⁵

These regulatory divisions of responsibility give federal land managers a dominant role in protecting wildlife habitat from potential impacts related to resource-development activities. Undoubtedly, however, when a substantial mineral-development project is permitted on federal land, both federal and state agencies will be involved in ensuring that both wildlife populations and habitat have been given proper consideration and protection.

State Involvement in Managing Impacts to Wildlife From Mineral-Development Activities

States become involved in addressing wildlife issues associated with mineral-development projects on federal lands in three primary ways: (1) by participating in the federal permitting processes; (2) by issuing necessary state permits and administering water rights; and (3) by enforcing state species- and habitat-protection statutes. Because each state has its own set of laws addressing wildlife and mineral activities, only the general contours of each of these three categories are summarized below.¹⁸⁶

State Participation in Federal Permitting. Federal laws governing the management of federal lands and permitting of mineral-development activities create substantial opportunities for states to provide input on potential wildlife impacts and to suggest mitigation measures to minimize such impacts. NEPA's implementing regulations require the BLM and the Forest Service to seek and consider input from the states on potential environmental impacts of proposed projects.¹⁸⁷ The Forest Service and the BLM are required to coordinate with, and seek input from, the states in developing plans governing the use of national forest and BLM lands.¹⁸⁸ Moreover, in some instances, statutes and regulations governing issuance of federal mineral rights and necessary approvals to develop those minerals require coordination with states.¹⁸⁹

While states generally may not, by virtue of their participation in federal land-use permitting, require restrictions on or veto mineral-development projects on federal land to protect wildlife,¹⁹⁰ federal land managers often give substantial weight to input from state wildlife agencies when fashioning final decisions and mitigation measures. Although the Forest Service and the BLM have enhanced their wildlife expertise in recent years,¹⁹¹ state wildlife agencies are often viewed as the repositories of knowledge on wildlife issues—especially involving game animals—and federal land managers may defer substantially to the concerns and opinions of those agencies.

State Permitting Requirements and Water-Rights Issues. Most western states have laws requiring permits governing the conduct of surface-mining operations and/or reclamation. These statutes apply to mining projects on nonfederal lands and, in many instances, on federal lands as well.¹⁹² Many of these laws expressly require that mining operations and/or reclamation be conducted in a manner that protects wildlife.¹⁹³

For example, the Colorado Mined Land Reclamation Act (CMLRA) requires that a state permit be obtained before conducting hardrock mining operations within Colorado.¹⁹⁴ One of the CMLRA's express purposes is (to aid in the protection of wildlife and aquatic resources.¹⁹⁵ For certain designated mining operations, the state must also approve an environmental protection plan. ¹⁹⁶ All such applicants are required to contact the Colorado Division of Wildlife for wildlifeprotection recommendations, which may be incorporated into the mining permit.¹⁹⁷

Similarly, in Washington State, the Department of Ecology is required to consult with the Department of Fish and Wildlife as to the impacts of any proposed metals-mining operation and "incorporate measures to mitigate significant probable adverse impacts to fish and wildlife" as permit requirements.¹⁹⁸ Nevada law requires operators to obtain a permit from the Department of Wildlife for artificial industrial ponds that could cause wildlife deaths.¹⁹⁹ Under this law, mining companies have had to implement mitigation measures for heap leach piles and tailings ponds in order to prevent mortalities of migratory birds and other wildlife.²⁰⁰

Several states also have statutes resembling NEPA that require the responsible state agency to evaluate the potential environmental impacts of any proposal requiring state approval.²⁰¹ For example, in Washington, an EIS must be prepared for any metalsmining operation.²⁰² Some of the state statutes, such as the California Environmental Quality Act, contain substantive as well as procedural requirements and require the state agency to take appropriate mitigation measures to eliminate potentially significant environmental impacts of proposed projects.²⁰³

Mineral project operators frequently must obtain water rights either to allow for disposal of produced water or to provide water for use in operations and processing. Except for federally reserved water rights, states have primary jurisdiction to administer the use of water within their boundaries—even on federal lands.²⁰⁴ Many western states require the responsible state agency to consider whether the "public interest" will be served before granting permits for new water rights.²⁰⁵ In some of these states, this determination requires the state to consider the potential impacts to fish and wildlife from a proposed appropriation and allows the state to deny a water rights application if impacts to those resources would be unacceptable.²⁰⁶

State Requirements for Species and Habitat Protection. Many states have laws specifically designed to protect endangered species.²⁰⁷ Some of these statutes mimic the federal ESA and contain takings prohibitions and consultation requirements for state agency actions.²⁰⁸ Furthermore, species that are not protected under the ESA may be protected by a state species-protection statute.²⁰⁹

Some states also have various permitting requirements designed to protect wildlife habitat. In Nevada, for example, approval is required from the Division of Wildlife in order to "[o]bstruct, damage, diminish, destroy, change, modify, or vary the natural shape and form of a stream system on its banks by any type of construction or other activity that is detrimental to wildlife."²¹⁰

Conclusion

Federal land managers are increasingly exercising their general resourcemanagement authorities to protect wildlife species before they are listed under the ESA in ways that may dramatically affect the timing of, and the constraints placed on, proposed mineral exploration and development activities. The Forest Service and the BLM generally have extensive authority and discretion in fashioning measures to mitigate potential wildlife impacts to nonlisted species. Consequently, project proponents should work proactively with federal land managers and state wildlife agencies to seek creative measures to protect wildlife resources, while allowing a variety of multiple-use activities such as mineral development to proceed in a manner that maintains the overall integrity of ecosystems on federal land.

1. For example, as authority for the Bureau of Land Management's (BLM's) wildlife program, the BLM MANUAL lists 22 statutes and several executive orders, including the Bald and Golden Eagle Protection Act, the Clean Air Act, the Endangered Species Act (ESA), the Federal Land Policy and Management Act, the Federal Water Pollution Control Act, the Fish and Wildlife Coordination Act, the Migratory Bird Treaty Act, the National Environmental Policy Act (NEPA), the Surface Mining Control and Reclamation Act, and the Taylor Grazing Act. BLM MANUAL § 6500.03 (1988).

2. 115 S. Ct. 2407, 25 ELR 21194 (1995).

3. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

4. As used throughout this Article, the term "wildlife" generally refers to mammals, birds, fish, reptiles, amphibians, and invertebrate animals that are not listed as endangered or threatened species under the ESA.

5. Native American tribes may also play a substantial role in the management and protection of wildlife, especially within their reservations. See MICHAEL J. BEAN, THE EVOLUTION OF NATIONAL WILDLIFE LAW 48-59 (1983). The extent of tribal authority to manage wildlife and the interplay between that authority and federal/state authority is beyond the scope of this Article.

6. LaCoste v. Department of Conservation of La., 263 U.S. 545, 549 (1924) (upholding state severance tax on wild, fur-bearing animal skins); Abby Dodge v. United States, 223 U.S. 166, 174 (1912) (stating that because states own the tidewaters and the sponges therein, the federal government may not restrict harvesting of sponges from these waters); Geer v. Connecticut, 161 U.S. 519, 534 (1896) (upholding state statute prohibiting the interstate transportation of game lawfully killed within the state).

7. See id.

8. See, e.g., LaCoste, 263 U.S. at 552 ("Protection of wildlife of the state is peculiarly within the police powers, and the state has great latitude in determining what means are appropriate for its protection."). Some of these cases indicated, however, that federal wildlife laws might be precluded from application within state boundaries. See, e.g., Abby Dodge, 223 U.S. at 173-75.

9. 252 U.S. 416 (1920).

10. 16 U.S.C. §§ 703-712. The MBTA is discussed in more detail infra notes 130-39 and accompanying text.

11. Missouri v. Holland, 252 U.S. at 434.

12. See Hughes v. Oklahoma, 441 U.S. 322, 9 ELR 20360 (1979); Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 7 ELR 20442 (digest) (1977). As the Court stated in Douglas, "the 'ownership' language of [such] cases … must be understood as no more than a 19th-century legal fiction expressing 'the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.'" 431 U.S. at 284 (quoting Toomer v. Witsell, 334 U.S. 385 (1948)); see also Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 17 ELR 20380 (10th Cir. 1986), cert. denied, 480 U.S. 951 (1987).

13. United States v. Long Cove Seafood, Inc., 582 F.2d 159, 8 ELR 20643 (2d Cir. 1978); Clajon Prod. Corp. v. Petera, 854 F. Supp. 843 (D. Wyo. 1994), aff'd in part, 70 F.3d 1566, 26 ELR 20213 (10th Cir. 1995). In Kleppe v. New Mexico, 426 U.S. 529, 6 ELR 20545 (1976), however, the Court left open the issue of whether the federal government can assert a property interest in wildlife on federal lands. See Kleppe, 426 U.S. at 537, 6 ELR at 20546.

14. See, e.g., Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784, 834 (D. Minn. 1994); COLO. REV. STAT. § 33-1-101(2) (1995); NEV. REV. STAT. § 501.100 (1993); WASH. REV. CODE § 77.12.010 (1994). Even states that have such statutory declarations appear to acknowledge that they do not own wildlife in the usual proprietary sense, but instead hold wildlife in trust for the common benefit of their citizens. See, e.g., Clajon, 854 F. Supp. at 848.

15. See Kleppe, 426 U.S. at 545, 6 ELR at 20549; Missouri, 252 U.S. at 434; Crow Tribe of Indians v. Repsis, 73 F.3d 982, 990 (10th Cir. 1995); Clajon, 854 F. Supp. at 851.

16. U.S. CONST. art. II, § 2, cl. 2.

17. E.g., Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature Mar. 3, 1973, 27 U.S.T. 1087, available in ELR STAT. & TREATIES.

18. U.S. CONST. art. I, § 8, cl. 18.

19. Missouri, 252 U.S. at 416.

20. U.S. CONST. art. IV, § 3, cl. 2.

21. See Kleppe v. New Mexico, 426 U.S. 529, 540-41, 6 ELR 20545, 20547 (1976); Hunt v. United States, 278 U.S. 96 (1928) (holding that the U.S. Department of Agriculture (USDA) had authority to remove deer from national forest where deer were overgrazing national forest lands).

22. See New Mexico State Game Comm'n v. Udall, 410 F.2d 1197 (10th Cir. 1969), cert. denied sub nom. New Mexico State Game Comm'n v. Hickel, 396 U.S. 961 (1961) (holding that federal government could regulate the killing of deer on federal lands for research purposes, without any showing that the deer were causing harm to the lands).

23. Kleppe, 426 U.S. at 529, 6 ELR at 20545.

24. 16 U.S.C. §§ 1331-1340.

25. Kleppe, 426 U.S. at 533-34, 6 ELR at 20546.

26. Id. at 540-41, 6 ELR at 20547.

27. E.g., United States v. Brown, 552 F.2d 817, 822, 7 ELR 20366, 20367-68 (8th Cir. 1977) (holding that National Park Service can restrict hunting on adjacent nonfederal waters), cert. denied, 431 U.S. 949 (1977); Nevada v. United States, 547 F. Supp. 776, 778 (D. Nev. 1982) (upholding federal waterfowl regulations), aff'd, 731 F.2d 633 (9th Cir. 1984); see also Duncan Energy Co. v. U.S. Forest Serv., 50 F.3d 584, 26 ELR 20202 (8th Cir. 1995) (reciting Kleppe); United States v. Lindsey, 595 F.2d 5 (9th Cir. 1979) (holding that federal government may prohibit building fires near federal property); United States v. Alford, 274 U.S. 264 (1927) (same).

28. In fact, the Supreme Court expressly left open this issue in Kleppe. See id. 426 U.S. at 546, 6 ELR at 20549.

29. U.S. CONST. art. I, § 8, cl. 3.

30. But see United States v. Lopez, 115 S. Ct. 1624 (1995) (striking down federal gun-control law as not regulating commercial activity).

31. See, e.g., Leslie Salt Co. v. United States, 55 F.3d 1388, 25 ELR 21046 (9th Cir. 1995), cert. denied sub nom. Cargill, Inc. v. United States, 116 S. Ct. 407 (1995); Hoffman Homes, Inc. v. Administrator, 999 F.2d 256, 23 ELR 21139 (7th Cir. 1993); Palila v. Hawaii Dep't of Land and Natural Resources, 471 F. Supp. 985, 9 ELR 20426 (D. Haw. 1979), aff'd, 639 F.2d 495, 11 ELR 20446 (9th Cir. 1981). The Commerce Clause also places restrictions on state wildlife laws that discriminate against interstate commerce. See Hughes v. Oklahoma, 441 U.S. 322, 9 ELR 20360 (1979); Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 7 ELR 20442 (1977). But see Pacific N.W. Venison Producers v. Smitch, 20 F.3d 1008, 1014 (9th Cir. 1994) ("Regulations promulgated pursuant to the state's interest in the preservation of its wildlife carry a strong presumption of validity."), cert. denied, 115 S. Ct. 297 (1994). At least one court has recently attempted to narrow substantially the scope of power granted by the Commerce Clause, specifically with respect to a federal environmental law. See United States v. Olin Corp., 927 F. Supp. 1582, 26 ELR 21303 (S.D. Ala. 1996) (holding that under certain circumstances enforcement of the Comprehensive Environmental Response, Compensation, and Liability Act exceeds federal authority under the Commerce Clause).

32. Where federal and state laws addressing a particular wildlife-related issue overlap, a preemption analysis should be applied to determine whether federal law governs exclusively. See Douglas, 431 U.S. at 272. "Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution." Id. at 284-85; see also California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 17 ELR 20563 (1987); United States v. Nye County, 920 F. Supp. 1108, 26 ELR 21285 (D. Nev. 1996). Under the Supremacy Clause, U.S. CONST. art. VI, cl. 2, state wildlife-related laws are enforceable unless Congress has enacted legislation that conflicts with the state law or has acted to preempt the entire area of regulation. See Kleppe, 426 U.S. at 543, 6 ELR at 20548; Douglas, 431 U.S. at 272-82; see also Cresenzi Bird Importers, Inc. v. New York, 658 F. Supp. 1441, 17 ELR 20996 (S.D.N.Y. 1987), aff'd, 831 F.2d 410, 18 ELR 20036 (2d Cir. 1987); Boundary Backpackers v. Boundary County, 913 P.2d 1141 (Idaho 1996).

33. See supra notes 55, 67-68 and accompanying text (stating that the MUSYA and FLPMA do not preempt state authority to manage wildlife on national forest and BLM lands, respectively).

34. The FWS, which has a central role in implementing the ESA, generally plays only a research and advisory role in managing most other wildlife impacts. The FWS may provide nonbinding comments on environmental analyses prepared under NEPA and is responsible for ensuring the protection of certain nonlisted wildlife species under specific statutory directives. See generally J.B. LOOMIS, INTEGRATED PUBLIC LANDS MANAGEMENT (1993).

35. For instance, the Sikes Act directs the Secretaries of the USDA and the U.S. Department of the Interior (DOI) to develop, in cooperation with the states, comprehensive plans for the conservation of wildlife. 16 U.S.C. §§ 670g-670o.

36. The other two primary systems are the National Park System and the National Wildlife Refuge System, each of which is subject to its own regulations governing minerals management and wildlife management and protection. See United States v. Vogler, 859 F.2d 638 (9th Cir. 1988), cert. denied, 488 U.S. 1006 (1989) (upholding regulations governing mining within the National Park System); National Park Organic Act, 16 U.S.C. § 1 (providing that conservation of wildlife is a fundamental purpose of the national parks); id. § 1902 (subjecting mineral-development activities within the National Park System to rules and regulations adopted by the DOI to further the purposes of the National Park Organic Act).

37. While federal land managers have broad authority to make decisions concerning land uses that may impact wildlife and wildlife habitat, states also play a significant role in managing wildlife populations on national forest and BLM lands. See generally Defenders of Wildlife v. Andrus, 627 F.2d 1238, 10 ELR 20163 (D.C. Cir. 1980).

38. Transfer Act, Act of Feb. 1, 1905, ch. 288, 33 Stat. 626 (codified as amended at 16 U.S.C. § 472).

39. Under the 1905 Transfer Act, the USDA was given authority to execute all laws affecting the national forests, except "such laws as affect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of any of such lands." 16 U.S.C. § 472; see also Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. § 528 (authorizing the Forest Service to manage a variety of surface resources, while not affecting the use or administration of mineral resources on national forest lands). But see Multiple Surface Resources Act of 1955, 30 U.S.C. § 601 (giving the Forest Service responsibility for the sale of common-variety minerals on national forest lands).

40. Act of June 4, 1897, ch. 2, § 1, 30 Stat. 34.

41. 16 U.S.C. §§ 528-531.

42. Id. §§ 1600-1614, ELR STAT. NFMA §§ 2-16.

43. See supra section on Historical State Power to Regulate Wildlife.

44. In a case involving federally reserved water rights, the Supreme Court concluded that in enacting the Organic Act, Congress specifically intended that forest reserves would not be created for wildlife-preservation purposes, but only to conserve water flows and to provide a continuous supply of timber. United States v. New Mexico, 438 U.S. 696, 707-08 (1978). Whether that holding applies more broadly outside the area of federal reserved water rights is uncertain.

45. 16 U.S.C. § 551.

46. Id. § 478.

47. See, e.g., Sabin v. Butz, 515 F.2d 1061 (10th Cir. 1975); McMichael v. United States, 355 F.2d 283 (9th Cir. 1965).

48. See Hunt v. United States, 278 U.S. 96 (1928) (holding that the Forest Service had authority to remove deer that were overgrazing national forest lands); see also CHARLES F. WILKINSON & H. DAN ANDERSON, LAND AND RESOURCE PLANNING IN THE NATIONAL FORESTS 281-85 (1987) (discussing early Forest Service wildlife management efforts).

49. California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 17 ELR 20563 (1987); Clouser v. Espy, 42 F.3d 1522, 25 ELR 20360 (9th Cir. 1994), cert. denied sub nom. Clouser v. Glickman, 115 S. Ct. 2577 (1995); United States v. Goldfield Deep Mines Co., 644 F.2d 1307, 11 ELR 20514 (9th Cir. 1981), cert. denied, 455 U.S. 907 (1982); United States v. Weiss, 642 F.2d 296, 11 ELR 20512 (9th Cir. 1981); United States v. Richardson, 599 F.2d 290, 9 ELR 20448 (9th Cir. 1979), cert. denied, 444 U.S. 1014 (1980).

50. See United States v. New Mexico, 438 U.S. 696, 8 ELR 20564 (1978), Intermountain Forest Indus. Ass'n v. Lyng, 683 F. Supp. 1330, 18 ELR 21057 (D. Wyo. 1988).

51. 16 U.S.C. § 528 (emphasis added).

52. Id. § 531(a).

53. Intermountain Forest, 683 F. Supp. at 1337, 18 ELR at 21060.

54. See, e.g., Perkins v. Bergland, 608 F.2d 803, 10 ELR 20070 (9th Cir. 1979); Parker v. United States, 307 F. Supp. 685, 1 ELR 20588 (D. Colo. 1969); McMichael v. United States, 355 F.2d 283 (9th Cir. 1965).

55. 16 U.S.C. § 528.

56. Id. §§ 1600-1614, ELR STAT. NFMA §§ 2-16.

57. Id. § 1604(e)(1), ELR STAT. NFMA § 6 (emphasis added).

58. See infra section on Federal Land-Use Plans.

59. 43 U.S.C. §§ 1701-1784, ELR STAT. FLPMA §§ 102-603.

60. Id. § 1701(a)(8), (14), ELR STAT. FLPMA § 102(a)(8), (14) (emphasis added).

61. Id. §§ 1712(c), 1732(a), ELR STAT. FLPMA §§ 202(c), 302(a). These plans are discussed more fully later in this Article. See infra section on Federal Land-Use Plans.

62. 43 U.S.C. §§ 1732(b), 1782(c), ELR STAT. FLPMA §§ 302(b), 603(c). See, e.g., Sierra Club v. Hodel, 848 F.2d 1068', 1091, 18 ELR 21237, 21247 (10th Cir. 1988).

63. Kendall's Concerned Area Residents, 129 IBLA 130, 140-41 (1994).

64. Sierra Club v. Penfold, 857 F.2d 1307, 1309, 19 ELR 20207, 20208-09 (9th Cir. 1988); see also infra section on Plans of Operations for Hard-Rock Mining.

65. Red Thunder, Inc., 129 IBLA 219, 236-37 (1994).

66. Sierra Club v. Clark, 774 F.2d 1406, 1410, 16 ELR 20409, 20441 (9th Cir. 1985); Concerned Citizens For Responsible Mining (On Reconsideration), 131 IBLA 257, 270 (1994).

67. 43 U.S.C. § 1732(b), ELR STAT. FLPMA § 302(b).

68. Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1248, 10 ELR 20163, 20169 (D.C. Cir. 1980).

69. 16 U.S.C. §§ 1131-1136.

70. Id. § 1133(b).

71. Id. § 113(c).

72. Id. § 1133(c), (d)(3)-(4). See Clouser v. Espy, 42 F.3d 1522, 25 ELR 20360 (9th Cir. 1994), cert denied sub nom. Clouser v. Glickman, 115 S. Ct. 2577 (1995) (holding that Forest Service may prohibit motorized access to mining claims located within wilderness area).

73. 36 C.F.R. § 293.2(a) (1995).

74. 43 U.S.C. § 1782(c), ELR STAT. FLPMA § 603(c); 43 C.F.R. § 3802.3-2(d) (1995) (requiring a hard-rock mine operator to take such action needed to minimize or prevent adverse impacts on plants, fish, and wildlife, and their habitat).

75. 16 U.S.C. § 1133(d)(7).

76. See, e.g., 36 C.F.R. § 219.11 (1995); 43 C.F.R. § 1601.0-5(k) (1995).

77. 16 U.S.C. § 1604(i), ELR STAT. NFMA § 6(i); 36 C.F.R. § 219.10(e) (1995); 43 C.F.R. § 1610.5-3(a) (1995).

78. 43 U.S.C. § 1712, ELR STAT. FLPMA § 202.

79. 43 C.F.R. pt. 1600 (1995).

80. 43 U.S.C. § 1712(c)(3), ELR STAT. FLPMA § 202(c)(3).

81. 43 C.F.R. § 1610.7-2 (1995).

82. 43 U.S.C. § 1702(a), ELR STAT. FLPMA § 103(a); 43 C.F.R. § 1610.7-2 (1995).

83. BLM MANUAL §§ 1613.02, 1613.22 (1988).

84. See, e.g., High Plains Petroleum Corp., 125 IBLA 4 (1992); Exxon Corp. v. Bureau of Land Management, 118 IBLA 38, 54 n.3 (1991).

85. 43 C.F.R. §§ 1610.7-1, 3420.1-4 (1995); BLM MANUAL § 1624 (1984); BLM, PLANNING FOR FLUID MINERAL RESOURCES, BLM HANDBOOK H-1624-1, at IV-1 (1990).

86. BLM MANUAL § 1601.1 (1984).

87. Petroleum Ass'n of Wyo., 133 IBLA 337 (1995); BLM MANUAL §§ 6780.05, 6780.1 (1984).

88. Principles of ecosystem management are discussed infra.

89. BLM MANUAL §§ 6780.21, 6780.3 (1984).

90. 16 U.S.C. § 1604, ELR STAT. NFMA § 6.

91. Id. § 1604(g)(2)(A), ELR STAT. NFMA § 6(g)(2)(A).

92. Id. § 1604(g)(3)(B), ELR STAT. NFMA § 6(g)(3)(B).

93. Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 301, 22 ELR 20372, 20374 (9th Cir. 1991).

94. See, e.g., Sharps v. U.S. Forest Serv., 28 F.3d 851 (8th Cir. 1994) (biodiversity provision does not apply to BLM district-level plan); Environment Now! v. Espy, 877 F. Supp. 1397, 26 ELR 20383 (E.D. Cal. 1994) (provisions do not apply to individual timber sales). But see Krichbaum v. Kelley, 844 F. Supp. 1107, 1114-15, 25 ELR 20023, 20026 (W.D. Va. 1994) (considering adequacy of biological evaluation for timber sale), aff'd, 61 F.3d 900 (4th Cir. 1995).

95. 36 C.F.R. § 219.19 (1995). The Forest Service is not required to maintain viable populations of nonnative species that are not "desired." Glisson v. U.S. Forest Serv., 876 F. Supp. 1016, 1027, 25 ELR 20300, 20303 (S.D. Ill. 1993), aff'd, 51 F.3d 275 (7th Cir. 1995).

96. 36 C.F.R. § 219.19.

97. Id. § 219.26 (emphasis added).

98. Id. § 219.27(g) (emphasis added).

99. Id. § 219.19(a)(1); see also Sierra Club v. Espy, 38 F.3d 792, 801-02, 25 ELR 20426, 20430-31 (5th Cir. 1994). The Forest Service may also designate "sensitive species," which include federal and state listed threatened and endangered species, and other species in need of special protection. FOREST SERVICE MANUAL § 2672 (1991). The Forest Service must prepare a biological evaluation for each activity it funds, conducts, or approves, assessing the proposed project's potential impacts on sensitive species. Id. § 2672.4.

100. 36 C.F.R. § 219.19(a)(1).

101. Id. § 219.19(a)(2).

102. Id. § 219.19.

103. Id. § 219.19(a)(6).

104. Seattle Audubon Soc'y v. Moseley, 798 F. Supp. 1484, 1489, 22 ELR 21471, 21472-73 (W.D. Wash. 1992), aff'd, 998 F.2d 699, 23 ELR 21148 (9th Cir. 1993); see also Sierra Club v. Marita, 46 F.3d 606, 25 ELR 20514 (7th Cir. 1995).

105. See Seattle Audubon Soc'y v. Lyons, 871 F. Supp. 1291, 25 ELR 20711 (W.D. Wash. 1994), aff'd sub nom. Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401, 26 ELR 20980 (9th Cir. 1996).

106. Seattle Audubon Soc'y v. Evans, 771 F. Supp. 1081, 21 ELR 21505 (W.D. Wash. 1991) (enjoining certain Forest Service timber sales until agency prepared standards and guidelines to ensure spotted owl's continued viability), aff'din relevant part, rev'd in part, 952 F.2d 297, 22 ELR 20372 (9th Cir. 1991).

107. See Moseley, 798 F. Supp. at 1489, 22 ELR at 21472-73.

108. See, e.g., Marita, 46 F.3d at 620, 25 ELR at 20521 (rejecting claim that LRMPs were invalid because the Forest Service failed to consider properly principles of conservation biology in evaluating the impact on biodiversity, which would require that large blocks of land be set aside solely for wildlife purposes); see also Sierra Club v. Espy, 38 F.3d 792, 25 ELR 20426 (5th Cir. 1994); Glisson v. U.S. Forest Serv., 876 F. Supp. 1016, 25 ELR 20300 (S.D. Ill. 1993), aff'd, 51 F.3d 275 (7th Cir. 1995); Sierra Club v. Robertson, 845 F. Supp. 485, 25 ELR 20052 (S.D. Ohio 1994); Krichbaum v. Kelley, 844 F. Supp. 1107, 25 ELR 20023 (W.D. Va. 1994), aff'd, 61 F.3d 900 (4th Cir. 1995); Oregon Natural Resources Council v. Lowe, 836 F. Supp. 727, 24 ELR 21031 (D. Or. 1993).

109. Marita, 46 F.3d at 620-21, 25 ELR at 20521-22; Robertson, 845 F. Supp. at 501, 25 ELR at 20060.

110. See supra note 97 and accompanying text.

111. Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401, 1404, 26 ELR 20980 (9th Cir. 1996); Marita, 46 F.3d at 621, 25 ELR at 20522; Espy, 38 F.3d at 800, 25 ELR at 20430.

112. See SeattleAudubon Soc'y v. Lyons, 871 F. Supp. 1291, 1311, 25 ELR 20711, 20718 (W.D. Wash. 1994) (stating that in some circumstances the Forest Service is required to conduct planning on an ecosystem basis), aff'd sub nom. Moseley, 80 F.3d at 1401, 26 ELR at 20980; 36 C.F.R. § 219.1(b)(3) (1995) (requiring that forest plans recognize that national forests are ecosystems).

113. Lyons, 871 F. Supp. at 1311, 25 ELR at 20718 ("Given the current condition of the forests, there is no way the agencies could comply with the environmental laws without planning on an ecosystem basis.").

114. 36 C.F.R. § 219.1(a)(3) (1995).

115. See, e.g., 60 Fed. Reg. 18886 (Apr. 13, 1995) (proposed Forest Service planning regulations that would incorporate "principles of ecosystem management into resource planning"); U.S. DEPARTMENT OF AGRICULTURE, THE FOREST SERVICE PROGRAM FOR FOREST AND RANGELAND RESOURCES: A LONG-TERM STRATEGIC PLAN, DRAFT 1995 RPA PROGRAM (Oct. 1995) (draft renewable resource program that would make ecosystem management a basic platform for managing the national forests); BLM MANUAL § 6500.06 (1988) (stating BLM policy to manage wildlife habitat with an emphasis on ecosystems to ensure a natural abundance and diversity of wildlife).

116. USDA FOREST SERVICE AND DOI BUREAU OF LAND MANAGEMENT, DECISION NOTICE/DECISION RECORD, INTERIM STRATEGIES FOR MANAGING ANADROMOUS FISH-PRODUCING WATERSHEDS ON FEDERAL LANDS IN EASTERN OREGON AND WASHINGTON, IDAHO, AND PORTIONS OF CALIFORNIA (Feb. 24, 1995) [hereinafter PACFISH DECISION].

117. USDA AND DOI, ENVIRONMENTAL ASSESSMENT FOR THE IMPLEMENTATION OF INTERIM STRATEGIES FOR MANAGING ANADROMOUS FISH-PRODUCING WATERSHEDS IN EASTERN OREGON AND WASHINGTON, IDAHO, AND PORTIONS OF CALIFORNIA 2 (Mar. 18, 1994) [hereinafter PACFISH EA].

118. PACFISH DECISION, supra note 116, at 2.

119. Id. at 11-12.

120. PACFISH EA, supra note 117, at 29.

121. Id. at C-7 to C-17.

122. 60 Fed. Reg. 39927 (Aug. 14, 1995). For a more detailed discussion of PACFISH and INFISH, see Murray D. Feldman & Michael J. Brennan, Using the Endangered Species Act as a Vehicle in the Pursuit of Ecosystem Management, 41 ROCKY MTN. MIN. L. INST. 6-10 to 6-24 (1995).

123. See 59 Fed. Reg. 63071 (Dec. 7, 1994); id. 4680 (Feb. 1, 1994). Draft versions of the EISs are projected to be completed in the fall of 1996, with a 120-day public comment period to follow.

124. 59 Fed. Reg. at 63071.

125. Id. at 63072.

126. See 142 CONG. REC. S4161 (daily ed. Apr. 25, 1996) (statement of Sen. Hatfield regarding enactment of 1996 Omnibus Appropriations bill).

127. NATIONAL PARK SERVICE AND U.S. FOREST SERVICE, THE GREATER YELLOWSTONE AREA: AN AGGREGATION OF NATIONAL PARK AND NATIONAL FOREST MANAGEMENT PLANS (Sept. 1987) (prepared under the direction of the Greater Yellowstone Coordinating Committee).

128. See, e.g., NATIONAL PARK SERVICE AND U.S. FOREST SERVICE, VISION FOR THE FUTURE: A FRAMEWORK FOR COORDINATION IN THE GREATER YELLOWSTONE AREA (DRAFT) (Aug. 1990).

129. Compare id. with NATIONAL PARK SERVICE AND U.S. FOREST SERVICE, A FRAMEWORK FOR COORDINATION OF NATIONAL PARKS AND NATIONAL FORESTS IN THE GREATER YELLOWSTONE AREA (Sept. 1991), the abbreviated final version adopted by the agencies. There is some indication that the general theme of ecosystem management in the Greater Yellowstone area still has some vitality, however. See, e.g., 60 Fed Reg. 40153 (Aug. 7, 1995) (eliminating Targhee National Forest and portions of the Bridger-Teton and Caribou National Forests within the Greater Yellowstone Ecosystem from the upper Columbia River Basin analysis, because those forests will be managed on an ecosystem basis under the Greater Yellowstone Ecosystem umbrella).

130. 16 U.S.C. §§ 703-712.

131. Id. § 703.

132. See 50 C.F.R. § 10.13 (1995).

133. 16 U.S.C. § 707.

134. See United States v. FMC Corp., 572 F.2d 902, 8 ELR 20326 (2d Cir. 1978) (pesticides in company's wastewater pond).

135. See, e.g., United States v. Smith, 29 F.3d 264, 24 ELR 21252 (7th Cir. 1994); United States v. Engler, 806 F.2d 425, 17 ELR 20334 (3d Cir. 1986), cert. denied, 481 U.S. 1019 (1987).

136. See, e.g., United States v. Rollins, 706 F. Supp. 742, 19 ELR 20935 (D. Idaho 1989); United States v. Corbin Farm Serv., 444 F. Supp. 510, 8 ELR 20333 (E.D. Cal. 1978), aff'd, 578 F.2d 259, 8 ELR 20615 (9th Cir. 1978).

137. Compare Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 22 ELR 20372 (9th Cir. 1991) (award of timber sale did not result in taking of migratory birds under the MBTA), Mahler v. U.S. Forest Service, 927 F. Supp. 1559 (S.D. Ind. 1996) (same), and In Re Bar First Go Round Salvage Sale, 121 IBLA 347 (1991) (same) with Babbitt v. Sweet Home Chapter of Communities for a Great Or., 115 S. Ct. 2407, 25 ELR 21194 (1995) (habitat degradation may be a taking under the ESA).

138. National Wildlife Fed'n, 126 IBLA 48, 66 (1993). The Board noted that the MBTA's take prohibition does not encompass habitat modification that poses a risk of a taking. Consequently, the MBTA cannot serve as a basis for a challenge to administrative approval of a proposed project, in the absence of evidence that death or injury will occur. Sierra Club v. Martin, No. 1:96-CV-926-FMH (N.D. Ga. May 8, 1996).

139. In Upper Mohawk Community Council, 104 IBLA 382, 388 (1988), the IBLA indicated that while the mere awarding of a timber contract cannot cause a taking under the MBTA, a violation may occur if trees containing migratory bird nests are cut and removed.

For further discussion of MBTA issues associated with mining operations, see James E. Good & Patrick G. Mitchell, Wildlife and Mining Operations: Mutually Compatible or Irreconcilable Differences?, 37 ROCKY MTN. MIN. L. INST. 7-1, 7-27 to 7-35 (1991).

140. 16 U.S.C. § 668(a)-(c).

141. Id. § 668(c).

142. Id. § 668(a), (b).

143. National Wildlife Fed'n, 126 IBLA 48, 66 (1993); Lower Valley Power & Light, Inc., 82 IBLA 216, 223 (1984).

144. 16 U.S.C. § 668(b); 50 C.F.R. § 22.25 (1995).

145. 50 C.F.R. § 10.21 (1995).

146. Id. § 17.11.

147. See United States v. Mackie, 681 F.2d 1121, 12 ELR 20972 (9th Cir. 1982).

148. See Defenders of Wildlife v. Administrator, 882 F.2d 1294, 19 ELR 21440 (8th Cir. 1989).

149. See 33 C.F.R. § 320.4(b)(2) (1995).

150. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

151. Id. § 1311(a), ELR STAT. FWPCA § 301(a).

152. 33 C.F.R. § 328.3(b) (1995); see also Leslie Salt Co. v. United States, 55 F.3d 1388, 25 ELR 21046 (9th Cir. 1995), cert. denied sub nom. Cargill, Inc. v. United States, 116 S. Ct. 407 (1995).

153. 33 C.F.R. § 320.4 (1995).

154. 40 C.F.R. §§ 230.10, .31, .32 (1995).

155. 33 U.S.C. § 1344(c), ELR STAT. FWPCA § 404(c).

156. 42 U.S.C. §§ 4321-4347, ELR STAT. NEPA §§ 2-209.

157. Courts have generally held that compliance with NEPA's environmental-review requirements satisfies the Fish and Wildlife Coordination Act, 16 U.S.C. § 662, which requires the Corps and other federal agencies to consult with the FWS and the appropriate state wildlife agency as to wildlife impacts of water-diversion projects. Consequently, the Coordination Act is of little independent significance today. See Missouri Coalition for the Env't v. U.S. Army Corps of Eng'rs, 678 F. Supp. 790, 19 ELR 20581 (E.D. Mo. 1988), aff'd, 866 F.2d 1025, 19 ELR 20588 (8th Cir. 1989), cert. denied, 493 U.S. 820 (1989); Enos v. Marsh, 616 F. Supp. 32 (D. Haw. 1984), aff'd, 769 F.2d 1363, 15 ELR 20853 (9th Cir. 1985).

158. See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 19 ELR 20743 (1989) (holding that even if project destroyed all deer habitat in area, Forest Service approval would not violate NEPA, provided that the agency considered those impacts in rendering its decision); Foundation for N. Am. Wild Sheep v. U.S. Department of Agriculture, 681 F.2d 1172, 12 ELR 20968 (9th Cir. 1982) (requiring Forest Service to reevaluate potential impacts of road reconstruction on bighorn sheep).

159. See, e.g., Resources Ltd. v. Robertson, 8 F.3d 1394, 24 ELR 20026 (9th Cir. 1993), as amended on denial of reh'g, 35 F.3d 1300 (9th Cir. 1994) (involving challenge to EIS based on evaluation of logging impacts on various wildlife species); Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 23 ELR 20530 (9th Cir. 1993) (involving NEPA challenge based on hydroelectric project's alleged impact on fisheries).

160. See, e.g., Seattle Audubon Soc'y v. Moseley, 798 F. Supp. 1484, 1490, 22 ELR 21471, 21473 (W.D. Wash. 1992), aff'd, 998 F.2d 699, 23 ELR 21148 (9th Cir. 1993) (discussing how a NEPA analysis of the effect of forest-plan guidelines on the viability of various wildlife populations will provide the information necessary for the Forest Service to make substantive decisions that are consistent with the NFMA's biodiversity provisions).

161. The BLM requires approval of a plan of operations for any mining-related activity that will disturb five acres or more of BLM land and for activities within ACECs or other designated areas. 43 C.F.R. § 3809.1-4 (1995). The Forest Service requires an approved plan of operations for mining-related activities that will cause a significant disturbance of surface resources. 36 C.F.R. § 228.4 (1995). The regulations were adopted, in part, pursuant to the agencies' basic "organic act" authorities. See United States v. Weiss, 642 F.2d 296, 11 ELR 20512 (9th Cir. 1981).

162. 30 U.S.C. §§ 22-42.

163. 36 C.F.R. § 228.8 (1995).

164. Id. § 228.8(e).

165. Similarly, regarding reclamation, the Forest Service's regulations provide that the operator shall, "where practicable," reclaim the surface disturbed by operations to rehabilitate fisheries and wildlife habitat. Id. § 228.8(g).

166. 43 C.F.R. § 3809.2-2 (1995).

167. The regulations do specifically require mine operators to take such action as shall be needed to prevent adverse impacts to threatened or endangered species and their habitat. Id. § 3809.2-2(d). Moreover, for mining operations on BLM wilderness-study lands, the operator must take such action needed to minimize or prevent adverse impacts to fish and wildlife and their habitat. Id. § 3802.3-2(d).

168. See id. § 3809.0-5 (defining "unnecessary and undue degradation" as "surface disturbance greater than what would normally result when an activity is being accomplished by a prudent operator in usual, customary, and proficient operations of similar character …."); see also Sierra Club v. Clark, 774 F.2d 1406, 16 ELR 20409 (9th Cir. 1985) (upholding BLM decision to allow off-road vehicle use of public lands, even though some damage would occur); Concerned Citizens For Responsible Mining (On Reconsideration), 131 IBLA 257 (1994) (holding that mere fact that environmental harm will occur from oil and gas exploration does not mean that the harm is unnecessary or undue degradation).

169. United States v. United Mining Corp., No. IDI-29807 (DOI Office of Hearings and Appeals, Hearing Division, Nov. 1, 1994); see also Respondent's Answer/Brief to Appellant's Statement of Reasons for Appeal filed in United States v. United Mining Corp., No. 95-1336 (IBLA appeal filed Nov. 1994) (decision pending).

170. United States v. United Mining Corp., No. 95-1336 (IBLA appeal filed Nov. 1994) (decision pending).

171. United States v. Smith, 86 F.3d 1165 (9th Cir. 1996).

172. 30 U.S.C. § 226(a).

173. See Udall v. Tallman, 380 U.S. 1, 4 (1965).

174. 36 C.F.R. § 228.102 (1995) (Forest Service oil and gas leasing analysis); 43 C.F.R. §§ 3420.1-4, 3461.5(i)-(o) (1995) (BLM coal-leasing suitability criteria).

175. 43 C.F.R. § 3461.5(k)-(o) (1995).

176. 36 C.F.R. § 228.108 (1995) (Forest Service regulations governing approval of oil and gas surface-use plans of operations); 43 C.F.R. §§ 3162.3-1, .5-1 (1995) (BLM regulations governing applications for drill permits, surface-use plans, and environmental obligations).

177. 43 C.F.R. § 3101.1-2 (1995).

178. See generally Charles L. Kaiser & Scott W. Hardt, Surface-Use Regulation of Federal Oil and Gas Leases: Exploring the Limits of Administrative Discretion, 38 ROCKY MTN. MIN. L. INST. 19-1 (1992).

179. 36 C.F.R. § 251.56 (1995).

180. 43 U.S.C. § 1765(a), ELR STAT. FLPMA § 505(a); 43 C.F.R. §§ 2801.2(b), 2920.7 (1995).

181. 36 C.F.R. § 241.2 (1995).

182. Id.

183. 43 C.F.R. § 24.4(d) (1995); see also BLM MANUAL § 6500.07 (1988).

184. 43 C.F.R. § 24.4(d).

185. BLM MANUAL § 6521.1 (1988). Both the BLM MANUAL and the FOREST SERVICE MANUAL direct the respective agencies to enter into memoranda of understanding with each state setting forth further details of this interagency cooperative arrangement. BLM MANUAL § 6521.11 (1988); FOREST SERVICE MANUAL § 2611.1 (1990).

186. States are primarily responsible for regulating the taking of nonendangered wildlife through regulations that govern hunting, fishing, and trapping, even on federal lands. However, because it is generally not relevant to mineral-development projects, the body of law governing hunting, fishing, and trapping is not discussed in this Article. Several other sources are available, however. See, e.g., GEORGE C. COGGINS, PUBLIC NATURAL RESOURCES LAWS § 18.03 (1996); see also generally BEAN, supra note 5.

187. 40 C.F.R. §§ 1501.6, 1503.1(a)(2) (1995).

188. 36 C.F.R. § 219.19(a)(3) (1995) (requiring the Forest Service to consult with state wildlife agencies when planning for fish and wildlife); 43 C.F.R. § 1610.3-1 (1995) (requiring the BLM to coordinate planning efforts with states).

189. See, e.g., 43 C.F.R. §§ 3420.1-7, .4-3 (1995) (requiring consultation with states as to the suitability of lands for coal leasing and appropriate mitigation measures).

190. California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 17 ELR 20563 (1987).

191. See GENERAL ACCOUNTING OFFICE, PUBLIC LAND MANAGEMENT: ATTENTION TO WILDLIFE IS LIMITED 4-5 (Mar. 1991) (stating that wildlife programs within the BLM and the Forest Service were receiving from 3 to 7 percent of the agencies' annual funds, but that wildlife program funding was increasing).

192. As with wildlife laws, state laws regulating mineral-development activities on federal lands are enforceable, unless preempted by congressional action. California Coastal Comm'n, 480 U.S. at 581, 17 ELR at 20565. While state land-use planning has generally been preempted on BLM and Forest Service lands, in many instances, reasonable state environmental permitting requirements governing mineral operations have not been preempted. Id. at 584-85, 17 ELR at 20567-68; see also 36 C.F.R. § 228.112(c) (1995) (Forest Service oil and gas leasing regulations do not preempt state law); 43 C.F.R. § 3809.3-1(a) (1995) (BLM mining plan of operation regulations do not preempt state law).

193. E.g., COLO. REV. STAT. §§ 34-32-101 to -125 (1995); IDAHO CODE §§ 47-1501 to -1518 (1996); NEV. REV. STAT. §§ 519A.010 to -.290 (1993); UTAH CODE ANN. §§ 40-8-1 to -23 (1993).

194. COLO. REV. STAT. § 34-32-109 (1995).

195. Id. § 34-32-102. A similar legislative objective is cited for the Colorado Surface Coal Mining Reclamation Act. Id. § 34-33-102 (1995).

196. Id. § 34-32-116.5(1).

197. Id. § 34-32-116.5(6).

198. Wash. Rev. Code. § 78.56.050(3) (1994).

199. Nev. Rev. Stat. § 502.390 (1993).

200. Good & Mitchell, supra note 139, at 7-33.

201. See, e.g., Mont. Code Ann. §§ 75-1-101 to -207 (1995); Wash. Rev. Code §§ 43.21C.010 to .914 (1994).

202. Wash. Rev. Code §§ 43.21C.039, 78.56.050(1) (1994).

203. Good & Mitchell, supra note 139, at 7-26.

204. See, e.g., 43 U.S.C. § 1701 note, ELR Stat. FLPMA § 102 note.

205. See, e.g., Nev. Rev. Stat. § 533.370(3) (1993); Wyo. Stat. § 41-4-503 (1977); A. Dan Tarlock, Law of Water Rights and Resources § 5.13 (1995).

206. Tarlock, supra note 205, § 5.13[1].

207. See, e.g., Colo. Rev. Stat. §§ 33-2-101 to -107 (1984); Mont. Code Ann. §§ 87-5-101 to -123 (1995); Or. Rev. Stat. §§ 496.172 to .192 (1995); Wash. Rev. Code §§ 77.12.020, 77.16.120 (1994).

208. See, e.g., Colo. Rev. Stat. § 33-2-105(3) (1984) (takings prohibition).

209. See, e.g., 2 Colo. Code Regs. § 406-8 (1996) (state list of endangered and threatened species).

210. Nev. Admin. Code ch. 504, § 504.520 (1996).

26 ELR 10513 | Environmental Law Reporter | copyright © 1996 | All rights reserved