CONTROL RESIDENT SPECIES OF WILDLIFE WHICH INHABIT WILDLIFE REFUGES, UNDER THE ADMIN. OF THE SECRETARY AUTHORITY OF THE SECRETARY OF THE INTERIOR TO MANAGE AND CONTROL RESIDENT SPECIES OF WILDLIFE WHICH INHABIT WILDLIFE REFUGES, GAME RANGES, WILDLIFE RANGES, AND OTHER FEDERALLY OWNED PROPERTY UNDER THE ADMINISTRATION OF THE SECRETARY Constitutional Law Under the Constitution the United States may acquire land for many purposes, including wildlife refuges; may make all needful rules and regulations respecting this land; and may delegate such powers to the Secretary of the Interior. These rules and regulations are superior to those of the State where there is a conflict. Secretary of the Interior The authority to regulate hunting and fishing on Federally owned land has been delegated to the Secretary of the Interior by specific legislation. Regulations: Generally When the Federal Government owns land which is under the administration of the Secretary of the Interior as part of the National Wildlife Refuge System, the Secretary may make rules and regulations for the control and management of resident species of game on the land even though these regulations may be more restrictive than the hunting and fishing laws of the State within which the land is located. These rules and regulations take supremacy over State law where there is a conflict. Words and Phrases Title, Fish and Wildlife. Such title as a State may hold to wild animals is a trust interest for the benefit of its citizens, not a possessory title. M-36672 To: ASSISTANT SECRETARY FOR FISH AND WILDLIFE December 1, 1964 SUBJECT: AUTHORITY OF THE SECRETARY OF THE INTERIOR TO MANAGE AND CONTROL RESIDENT SPECIES OF WILDLIFE WHICH INHABIT WILDLIFE REFUGES, GAME RANGES, WILDLIFE RANGES, AND OTHER FEDERALLY OWNED PROPERTY UNDER THE ADMINISTRATION OF THE SECRETARY. The Secretary of the Interior has promulgated general regulations, contained in Title 50 of the Code of Federal Regulations, and special regulations,1 published annually in the Federal Register, that control 1 The authority of the Secretary to promulgate special hunting and fishing regulations for particular refuges, ranges, or areas has been delegated to the Regional Directors of the Bureau of Sport Fisheries and Wildlife. See 25 F.R. 8524, 4 AM 4.9C, Administrative Manual of the Bureau of Sports Fisheries and Wildlife, as amended by 28 F.R. 12834. 760-039-65 -1 71 I.D. No. 12 the hunting and fishing activities of the general public upon those lands within the National Wildlife Refuge System (i.e., game ranges, wildlife ranges, wildlife refuges, and waterfowl production areas). These hunting and fishing regulations have taken one of two forms. Either the regulations incorporate by reference all the hunting and fishing laws of the State in which the refuge, range, or area is located, or the regulations expressly prohibit certain hunting and fishing activities which are permitted by State law. For example, if the State law authorizes the killing of two deer of either sex during a fixed season, the Secretary has either expressly adopted the State's season and bag limit for a particular refuge or has authorized only the killing of one deer of the male sex during a time period which is less than the deer hunting season prescribed by the State. The latter type of regulation is specifically designed to be more restrictive than the State hunting and fishing laws. During the past several years Commissioners and Directors of the various State fish and game departments have questioned the authority of the Secretary to promulgate hunting and fishing regulations for lands within the National Wildlife Refuge System, when the regulations prohibit those activities which the State fish and game laws permit. These State officials have argued that the Secretary of the Interior does not have the authority to manage and control resident species of wildlife (i.e., all species of fish and game), which inhabit Federally owned land under the administration of the Secretary. These State fish and game departments and the Ad Hoc Committee of the International Association of Fish and Game Commissioners, through conferences and correspondence with this Department, have maintained that the Secretary may issue only hunting and fishing regulations for resident species of wildlife that incorporate completely State law, because all resident species of wildlife, other than migratory birds, are subject to the exclusive jurisdiction and control of the several States, and the States have some semblance of title to the resident species of wildlife. Accordingly, the U.S. Fish and Wildlife Service has raised the following question: Does the Secretary of the Interior have the authority to promulgate regulations which control the hunting and fishing activities of the general public on lands within the refuge system, when such regulations are more restrictive than State fish and game laws? In order to analyze and answer this question it is necessary to eliminate certain collateral issues. When the States have ceded exclusive jurisdiction over land to the Federal Government, pursuant to Article I, Section 8 of the Federal Constitution and Section 355 of the Revised Statutes, as amended, 40 U.S.C. § 255 (1958), there is no question, in our opinion, that State fish and game laws have no application CONTROL RESIDENT SPECIES OF WILDLIFE WHICH INHABIT WILDLIFE REFUGES, UNDER THE ADMIN. OF THE SECRETARY December 1, 1964 to the Federally owned land. In those areas where there has been a cession of exclusive jurisdiction to the Federal Government, by definition, a State has no jurisdiction or control over the area. Similarly, we do not feel that it is necessary to give extensive analysis to the problem of the States controlling the hunting and fishing activities of the general public on non federally owned land. There is no question that the States have control and jurisdiction over the hunting and taking of resident species of wildlife, provided that such hunting activity occurs only upon land which is not owned by the Federal Government. The general power of a State to protect fish and game has always been considered an attribute of the sovereign power of the State. This proposition is supported by a long line of precedents. Geer v. Connecticut, 161 U.S. 519 (1896); Ward v. Race Horse, 163 U.S. 504 (1896); LaCoste et al. v. Department of Conservation of the State of Louisiana, 263 U.S. 545, 552 (1924); Foster-Fountain Packing Company v. Haydel, 278 U.S. 1, 11 (1928); State v. McCoy, 387 P. 2d 942 (1963). It is important to recognize that in all the above-cited cases the relationship involved was between a State and an individual, not between a State and the Federal Government. Therefore, when hunting activities occur on Federally owned land, an entirely different analysis and approach is required, since the relationship would then involve a State and the Federal Government. There can be no doubt that the Federal Government may acquire lands within a State for purposes within the ambit of its constitutional powers, and that it may do so by virtue of the power of eminent domain. Fort Leavenworth R.R. v. Lowe, 114 U.S. 525, 531 (1885). In the exercise of this power the United States has acquired land for many purposes, including wildlife refuges, game ranges, preserves, parks, and reservations, to name a few. Furthermore, the property clause of the Constitution, Article IV, Section 3, states, "The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States ***." (Italics added). Finally, there is the supremacy clause of the Constitution, Article VI, which reads, "This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the suprenie law of the land ***." The powers contained in the property and supremacy clauses of the Constitution extend not only to the public domain but also to property acquired by purchase or eminent domain. McKelvey v. United States, 260 U.S. 353 (1922); Utah Power and Light Company v. United States, 243 U.S. 389 (1917). It is the exercise of this power under the property and supremacy clauses which is dispositive of the question of the authority of the Federal Government, acting through the Secretary of the Interior, to manage and control resident species of wildlife, on Federal lands under his jurisdiction, through regulations which prohibit what State law permits. The exercise of this constitutional authority to make rules and regulations for Federally owned lands has often been challenged, but just as often upheld by the Courts. "The States and the public have almost uniformly accepted this [Federal] legislation as controlling, and in instances where it has been questioned in this Court its validity has been upheld and its supremacy over State enactments sustained." (Italics added.) Utah Power and Light Company v. United States, supra, at 404, and cases cited therein. The general Government doubtless has a power over its own property analogous to the police power of the several States, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case. Camfield v. United States, 167 U.S. 518, 525 (1897). These broad powers arise out of the proprietary interest of the United States to control the use of its land, and they exceed the powers of an ordinary landowner in the respect that the interest is held by a Sovereign and carries with it enforcement powers, referred to as police powers. Utah Power and Light Company v. United States, supra, at 405. Even the property interest of an ordinary landowner is protected to the extent that: "The State cannot, within constitutional limits, by the issuance of hunting licenses which purport to give a hunter the right to invade the private hunting grounds owned by another person, or by any other means, authorize one to enter another's premises, for the purpose of taking game, without the latter's permission." 24 AM. Jur., Game and Game Laws, § 5. (See cases cited.) A fortiori, the Sovereign's proprietary interest includes that of an ordinary landowner. It too may protect its holding and forbid trespass and control people on the land whether they be hunting, fishing, or just visiting. In addition, articles of value on the land-timber, hay, water, resident game and wildlife may also be protected by control over the land and persons on the land. "True, for many purposes a State has civil and criminal jurisdiction over lands within its limits belonging to the United States, but this jurisdiction does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use, and to prescribe CONTROL RESIDENT SPECIES OF WILDLIFE WHICH INHABIT WILDLIFE in what manner others may acquire rights in them." Utah Power and Light Company v. United States, supra, at 404. The authority of the proprietary interest is so substantial that it has been protected by holding enforceable Congressional statutes forbidding acts on lands adjoining Federally owned lands that might endanger the latter. United States v. Alford, 274 U.S. 264, 267 (1927); Camfield v. United States, supra. The basic constitutional authority appertaining to the proprietary interest in land owned by the United States has sustained the killing of game on Federally owned land by Federal officials while acting within the scope of their authority, although acting in violation of the game laws of the State in which the land was located. Hunt v. United States, 278 U.S. 96 (1928); Chalk v. United States, 114 F.2d 207 (4th Cir., 1940). See also Arizona v. California, 283 U.S. 423 (1931) and Johnson v. State of Maryland, 254 U.S. 51,56 (1920). From the foregoing authorities it is apparent that the United States constitutionally empowered as it is, may gain a proprietary interest in land within a State and, in the exercise of this proprietary interest, has constitutional power to enact laws and regulations controlling and protecting that land, including the persons, inanimate articles of value, and resident species of wildlife situated on such land, and that this authority is superior to that of a State. This broad Federal power to regulate and manage resident species of wildlife on Federally owned land, which is derived from the Federal Constitution and the inherent powers of the Federal Government as a landowner, has been vested in the Secretary of the Interior with respect to those land and water areas which comprise the National Wildlife Refuge System by the regulatory sections of the following legislation. Section 4 of the Act of September 28, 1962, 76 Stat. 653, 654 (1962); 16 U.S.C. § 460k-3 (Supp. V, 1959-63). Section 4 of the Fish and Wildlife Coordination Act, 48 Stat. 401, 402 (1934), as amended, 16 U.S.C. §§ 661, 664 (1958). Section 10 of the Migratory Bird Conservation Act, 45 Stat. 1222, 1224 (1929), as amended, 16 U.S.C. § 715i (1958). Section 4 of the Duck Stamp Act, 48 Stat. 451 (1934), as amended, 16 U.S.C. § 718d (b) (1958). Furthermore, this authority to regulate and manage resident species of wildlife, which has been delegated to the Secretary by the above legislation, has been supplemented by specific legislation for the ad |