A National Park Service decision that gave Wyoming officials control over wildlife management on private and state lands within Grand Teton National Park seems to have sidestepped historic negotiations that led to today's Grand Teton National Park, as well as longstanding court rulings that have upheld the Park Service's authority to manage all wildlife within a park, even on non-federal lands.
Of course, what advice officials in the Park Service's Intermountain Regional office used to make that decision (attached below) in November 2014 is impossible at this point to know. Since the agency is being sued by the National Parks Conservation Association and Greater Yellowstone Coalition over the decision, agency personnel and the Interior Department's solicitor on this case have declined to discuss the matter with the Traveler.
But there is ample evidence in court records going back decades that supports the authority of the Park Service to manage wildlife on all lands within a unit of the National Park System, regardless of ownership. Then, too, there was the clear guidance and intent of top Interior Department officials who, in 1949 and 1950, negotiated with Wyoming officials to reach a compromise that permitted the original footprint of Grand Teton to be enlarged through merger with the Jackson Hole National Monument and private lands acquired, and donated to the federal government, by John D. Rockefeller, Jr.
How, or why, the Intermountain Region staff overlooked those rulings and the Interior Department's position in 1950 hopefully will come to light as the lawsuit progresses through the legal system.
Interior Secretary Oscar Chapman was quite clear in his negotiations with Wyoming officials in 1949 and 1950 that the expanded park's enabling legislation banned hunting other than the elk reduction program sought by the state as part of a compromise to create the enlarged Grand Teton. In a letter (attached below) to Lester Bagley, at the time commissioner of the Wyoming Game and Fish Department, Secretary Chapman wrote that "(T)he act which established the new Grand Teton National Park does not allow the hunting of any animal species at any time or place within the boundaries, except elk within certain specified portions of the area and then only after following certain preliminary procedures...
"Other laws which are applicable to the administration of national parks, and which are not rendered inoperative by any portion of the new Grand Teton Act, are explicit in requiring protection of park wildlife," the secretary added.
This compromise -- to allow an elk hunt promoted as a means of controlling the herd's population -- was something of a bitter pill for both state and federal governments to swallow.
"If Grand Teton National Park sought to become a reality in 1950, it had to accept the contradiction of being a national park dedicated to the welfare of wildlife, while simultaneously agreeing to kill them," wrote historian Robert W. Righter in Peaks, Politics & Passion, Grand Teton National Park Comes of Age.
While the elk reduction hunt was written into the new park's enabling legislation, and so ties the Park Service's hands on that point, subsequent legal rulings give added strength to Secretary Chapman's position that no other hunting would be allowed in the park.
"We’re at a loss," replied Maureen Finnerty, chair of the Executive Council of the Coalition to Protect America's National Parks, when asked Wednesday about the matter. "We’ve been tracking this quite closely and we’re concerned. ... We think it’s a bad shift and a bad precedent. So we’ll see how it all plays out. I haven’t figured out who called for this and why. We think the law is clear. Obviously, somebody in the Solicitor's Department didn't."
In 1984, Blake Shepard, then a staff member of the Boston College Environmental Affairs Law Review, examined the legal ground pertaining to non-federal lands within parks that the National Park Service could stand on in The Scope of Congress' Constitutional Power Under the Property Clause: Regulating Non-Federal Property To Further The Purposes Of National Parks and Wilderness Areas. His 61-page analysis, weighing heavily on the constitutional powers Congress holds through both the Property and Commerce clauses of the U.S. Constitution, cited two court rulings that closely mirror the situation the Intermountain Region faced in 2014.
The first, Kleppe v. New Mexico, revolved around the 1971 roundup of wild burros by the New Mexico Livestock Board from federal lands. In arguing the case before the U.S. Supreme Court, the state argued that the federal government lacked the authority to enforce the Wild Free-roaming Horses and Burros Act on lands in New Mexico unless the state specifically ceded exclusive legislative authority over the land. In ruling against the state in 1976, the Supreme Court said the Property Clause gave Congress the authority "to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."
"The Court ... found that Congress could enact legislation respecting federal land under the Property Clause, even in the abscence of cession," wrote Mr. Shepard. "The Court further held that such federal legislation superseded conflicting state law under the Supremacy Clause."
In short, he explained, "the extent of Congress' modern constitutional authority over federal lands is largely defined by the scope of its power under the Property Clause."
As to non-federal lands within national parks, the Park Service's authority to manage them in the best interests of the respective parks was upheld in 1977 by the Eighth U.S. Circuit Court of Appeals when it ruled on United States v. Brown. In that case, Carl E. Brown was convicted of carrying a loaded firearm and hunting in Voyageurs National Park in Minnesota. In his defense, Brown argued that the park's waters were controlled by the state of Minnesota, not the Park Service.
But the district court ruled, and the Eighth Circuit agreed, that the prohibition against hunting in Voyageurs, both on land and on water, "was enacted to promote the federal policy underlying the creation of the park," Mr. Shepard wrote. "(The Eighth Circuit) noted the district court's determination that hunting on park waters could 'significantly interfere with the use of the park and the purpose for which it was established.'"
"We view the congressional power over federal lands to include the authority to regulate activities on non-federal public waters in order to protect wildlife and visitors on the lands," the Eighth Circuit held. "... The National Park Service Act allows the Secretary of the Interior to promulgate 'such rules and regulations as he may deem necessary or proper for the use and management of the parks.' 16 U.S.C. § 3. 1The regulations prohibiting hunting and possession of a loaded firearm were promulgated pursuant to that authority, 36 C.F.R. §§ 2.11 and 2.32, and are valid prescriptions designed to promote the purposes of the federal lands within the national park. Under the Supremacy Clause the federal law overrides the conflicting state law allowing hunting within the park.'"
The lawyers representing NPCA and GYC against the Park Service decision at Grand Teton cite the Brown case, as well as another case, United States v. Armstrong that arose in 1996 and which revolved around the conviction of Harold “Bo” Armstrong for operating a tour boat service within Voyageurs without a permit. In upholding the conviction, the Eighth Circuit cited its previous ruling in United States v. Brown, and also noted that the state of Minnesota, by agreeing to the creation of Voyageurs National Park, ceded its regulatory authority on park waters to the Park Service.
That point of regulatory cessation, the lawyers argued, also came into play in 1950 when the state of Wyoming agreed to the establishment of the enlarged Grand Teton.
A third case cited by Mr. Shepard, State of Minnesota by Alexander v. Block, in which the state challenged the federal government's authority to restrict motorized travel on non-federal lands and waters within Boundary Waters Canoe Area, a national wilderness area in Minnesota, also resulted in the Eighth Circuit upholding the government's regulatory authority over non-federal lands. In its ruling the court wrote that "Congress' power must extend to regulation of conduct on or off the public land that would threaten the designated purpose of federal lands."
"Congress clearly has the power to dedicate federal land for particular purposes," the judges went on. "As a necessary incident of that power, Congress must have the ability to insure that these lands be protected against interference with their intended purposes. As the Supreme Court has stated, under the Property Clause '(Congress) may sanction some uses and prohibit others, and may forbid interference with such as are sanctioned.'"
Ironically, in looking back on this judicial landscape, what Mr. Shepard concluded in 1984 might have resurfaced again in the Grand Teton case.
"These two developments," he wrote, citing the Brown and Block rulings, "should be of particular interest to the National Park Service and other federal agencies charged with the duty of administering and protecting government property. Historically, the Park Service has taken an extremely narrow view of its own constitutional authority to regulate activity on non-federal property. The Brown and Block decisions provide the Park Service with a constitutional basis for regulating activity on non-federal property when necessary to promote the purpose of the government lands under its domain.
"... Under Brown and Black, the federal government possesses the constitutional power to regulate non-federal property so long as such regulations served to foster any of the goals embodied in this statement of legislative purposes," Mr. Shepard added a bit later. "In theory, this statutory provision authorizes Congress or the Park Service to enjoin any activity on private property that would mar the aesthetic beauty of a National Park or threaten the ecological balance of the wildlife living therein."