Federalism, Preemption, and the Nationalization of American Wildlife Management

In this informative, highly readable book, Lowell Baier traces the trajectory of the federalism doctrine from its pre-founding origins to the present day. Having provided that broad context, the author ably chronicles federalism’s evolution in the area wildlife management, from the 19th century public trust doctrine through landmark enactments, such as the Migratory Bird Treaty Act and the Endangered Species Act, and important Supreme Court precedents. The basic story is one of increased centralization and federal preemption, largely driven—the author shows—by an abiding and perhaps excessive faith in ‘scientific management’ and ‘expertise.’ Baier’s engaged, yet judicious and commendably non-polemical discussion should be of value and interest to a broad audience. -- Michael S. Greve, PhD, Professor of Law, Antonin Scalia School of Law, George Mason University. Author of Real Federal¬ism: Why It Matters, How Could It Happen American wildlife management law for over two centuries has been a cru­cible in which the evolution of American federalism was forged. Lowell Baier’s sweeping, accessible account of that history comprehensively and insightfully assesses the conflicts and tensions leading to an ascendant federal presence. Looking forward, climate change presents an unprecedented chal­lenge to conservation policy, requiring that we return to the crucible to forge a national wildlife management regime for a no-analogue future. Whether one leans towards staying with the strong federal model Baier critiques or favors returning to the more state-centric approach he advocates, this master­ful history is indispensable reading for anyone engaged in the conversation about the future of our nation’s wildlife and habitat conservation federalism. -- J. B. Ruhl, PhD, JD, David Daniels Allen Distinguished Chair in Law, Co-Director, Energy, Environment, and Land Use Law Program, Vanderbilt University School of Law In charting the development of federalism over the history of the United States, the book offers an instructive account of the evolving conceptions of this key structural principle. Baier illuminates two important and sometimes conflicting features of contemporary federalism—the need for concurrent federal and state regulation and the extremely powerful role of federal spend­ing. By applying these critical insights to the field of environmental protec­tion, the book makes a significant contribution to a crucial area of public policy. -- Robert A. Schapiro, JD, Dean and C. Hugh Friedman Professor of Law University of San Diego School of Law Lowell Baier breathes life into this scholarly-but-vivid review of American federalism. The greatest tragedy of conservation law has been to sow discord among advocates who should be allies in habitat restoration and management. As someone who often sides with a more muscular federal approach, I none­theless find common cause with Baier in understanding these origins of the internecine feud over conservation. -- Robert L. Fischman, JD, George P. Smith, II, Distinguished Professor of Law Professor of Public and Environ¬mental Affairs, Indiana University Maurer School of Law Lowell Baier provides an opening here: an opening to engage in a more serious and thoughtful debate about the future of wildlife and biodiversity in the United States. As Baier shows with a sweeping historical narrative, there is not a facet of wildlife management, or a solution to the biodiversity crisis, that doesn’t implicate federalism in some fashion. Not everyone will agree on Baier’s diagnosis of what went wrong in the balance of federal and state pow­ers and what needs to be done about it. But the most viable and durable solu­tions will emerge only once the champions of federal and state powers over wildlife listen and learn from one another. Baier’s book provides one such opportunity and his call for rediscovering a common bond, matched with re­sponsible funding for the ESA and wildlife conservation more broadly, could not come at a better time. -- Martin Nie, PhD, Professor, Natural Resources Policy. Director, Bolle Center for People and Forests W.A. Franke College of Forestry and Conservation, University of Montana Tension between the states and the federal government within the unique American enterprise of wildlife conservation and management has simmered and boiled over repeatedly since the origins of the conservation movement. Lowell Baier has produced a scholarly, thoroughly researched, clearly written history with an explanation of the roots of the current conflict, and a recipe for cooperative conservation. -- John F. Organ, PhD, CWB, Scientist Emeritus, Cooperative Fish and Wildlife Research Units, Past President, Honorary Member, and Fellow, The Wildlife Society, 2020 Aldo Leopold Memorial Award, 2014 George Bird Grinnell Memorial Award, DOI Meritorious Service Award Baier correctly depicts the unwelcome drift toward federal hegemony in wildlife law, especially the Endangered Species Act. Although the ESA contemplates a federal partnership with the states, reflecting their well-established division of legal responsibility for resident and migratory species, federal programs are now preeminent. As experience in California suggests, the states are fully qualified to manage endangered species and their habi­tat. Baier correctly prescribes a return to shared responsibility for wildlife management, as Section 6 of the ESA intends. -- Douglas P. Wheeler, JD, Attorney at Law, Former Secretary, California Natural Resources Agency (1991–1999) While the story of wildlife management in America and the evolution of its legal underpinnings from the Mayflower to the modern era might seem too grand to be told in a single volume, Lowell Baier more than meets the chal­lenge. Pairing easy clarity with unsparing research, Mr. Baier successfully situates the development of our state and federal conservation agencies within the sweeping tapestry of our constitutional history. Laying this history before us, he leaves the reader to ponder critical questions about the relationship between state and federal authorities and how to best achieve cooperative conservation in the decades to come. -- Ronald J. Regan, CWB, Executive Director, Association of Fish and Wildlife Agencies This comprehensive work provides a detailed historical accounting of the tug of war between the federal and state governments regarding the manage­ment of wildlife. A must read for those seeking to understand the historical roots of wildlife management and law in the United States. Understanding the history, as Lowell Baier sagely notes, is key to our ability to move forward in a cooperative and constructive manner – working together at the state and federal level for the betterment of our nation’s wildlife and biodiversity. -- Temple Stoellinger, JD, College of Law, University of Wyoming