by John M. Simpson.
In a move that could have significant effect with respect to the federal wildlife laws and regulations administered by the Department of the Interior, the Secretary of the Interior recently reaffirmed “the authority of the States to exercise their broad trustee and police powers as stewards of the Nation’s fish and wildlife species on public lands and waters under the jurisdiction of the Department.” This action, stated in a September 10, 2018 memorandum to “Heads of Bureaus and Offices,” cited to the Department’s policy on state-federal relationships, 43 C.F.R., Part 24, and stressed that “State authority regarding fish and resident wildlife remains the comprehensive backdrop applicable in the absence of specific, overriding Federal law. This 35-year-old rule is more relevant today than ever.” Based upon the “full recognition of the State fish and wildlife agencies to regulate fish and resident wildlife within their respective boundaries and jurisdictions,” the Secretary directed that:
♦Within 45 days, Department Bureaus and Offices shall identify all Department regulations, policies and guidance on fish and wildlife that are “more restrictive than otherwise applicable State provisions;”
♦Within 90 days, each Bureau and Office shall report to the Deputy Secretary its recommendations to “better align” the identified federal rules with State provisions; and
♦Within 120 days, the Deputy Secretary shall consult with the relevant State authorities as to these recommendations and deliver an implementation plan to the Secretary.
It is not clear where this initiative is headed. Will the Department rely upon State laws and State authorities for the protection of, for example, endangered or threatened species? Will federal standards in these areas that have been traditionally more restrictive or protective of species than State laws be adjusted to be commensurate with the standards imposed by State law? Will the Department look to State authorities to have a greater or even primary role in the enforcement of federal laws such as the Endangered Species Act? Regardless of what the Department’s ultimate implementation plan may be, how much of it can be carried out without congressional action or a notice-and-comment rulemaking? The time table specified indicates that these matters will come to head within the next four months.