By Gavin Uitvlugt*
Isle Royale is Michigan’s only true national park.[i] The island lies in the northwest corner of Lake Superior and is home to a large moose population. In fact, this moose population has grown so large that Michigan state legislatures are worried about the long-term effects on the park ecosystem.[ii] In September of 2019, members of Michigan’s state legislature introduced a resolution to “encourage the National Park Service to establish a moose tag lottery hunt to assist in controlling the moose population on Isle Royale.”[iii]
The resolution, if adopted, would have no legal effect;[iv] as the resolution says, its purpose is merely to suggest a solution to the National Parks Service.[v] At first it is not clear why a state legislature would spend time and resources on a resolution that does little more than express an opinion. However, this post argues that state resolutions can be an effective way for states to signal willingness to comply with federal regulations. These signals can guide federal agencies that might otherwise be worried about violating principles of federalism.
National parks are federal land and are governed by federal laws and regulations. The National Park Service’s (NPS) power and responsibilities with respect to each park are delineated by Congressional statute, but the Property Clause of the Constitution gives Congress nearly unlimited authority over these lands.[vi] Federal agencies can even preempt state laws insofar as those laws adversely affect the federal land.[vii] In fact, federal agencies in the past have been permitted to cull deer on NPS regulated land, even when the culling violated state hunting laws.[viii] This means that the NPS certainly has the ability to implement regulations about hunting moose on Isle Royale, even if the state of Michigan disagreed with the NPS aims.
A state’s ability to influence policy within federal lands has historically been more limited. In fact, dissatisfaction with the federal government’s use of land within state boundaries led to a public movement in several western states to reclaim sovereignty over those lands.[ix] Despite having little to no legal support for their positions, county-level governments attempted to forcefully assert their authority to control public land.[x] This movement has been largely limited to the West, where the federal government possesses a disproportionate amount of land.[xi] Local action was accompanied by increasing emphasis on federalism by legislatures and courts, pushing federal land management to cooperate more with states and share authority.[xii]
Isle Royale’s characteristics create some problems for this newly developing paradigm. First, cooperation is not baked into the statute.[xiii] The NPS has no legal duty to concede authority to state officials with regard to Isle Royale. In fact, the NPS has been implementing its own plan to control the moose population: relocating wolves to the island.[xiv] Wolves are moose’s only natural predator on the island, and the NPS efforts to raise the wolf population should have the effect of lowering the number of moose. Based on the proposed resolution, Michigan’s legislatures are skeptical that this plan will be effective. Importantly, the NPS has no legal duty to change course in light of this skepticism.
Second, Isle Royale is an island, which means federal mismanagement will have a limited effect on surrounding state land. NPS regulated lands often exist as part and parcel of a state’s general territory, sharing boundaries with state public and private land. This creates cross-cutting pressure on both states and federal agencies.[xv] For instance, federal mismanagement of wildlife populations could affect areas outside of the federal land. This gives states a strong incentive to keep a close eye on federal agencies. Likewise, federal agencies need to work with state and local communities which might share important natural resources, like waterways. When federal land is closely tied to state land, there are strong incentives for cooperation by each side. However, the moose on Isle Royale are contained on the park. Even if an out of control moose population will damage the park’s ecosystem, it is not clear how there would be any meaningful effect on the state other than an economic impact; fewer people might visit the state because the park becomes a less attractive destination.[xvi] But the island’s unique problems are not the type that require a reciprocal relationship to reach a solution.
Nevertheless, representatives pushing the resolution think it is a prudent political action. Importantly, the resolution does more than point out a problem, it proposes a specific solution to the problem: a lottery-based moose hunt.[xvii] Such a hunt could raise revenue by charging individuals to enter a lottery for the chance to win a permit, and then also charge for the permit.[xviii] The representatives pushing the resolution clearly see their plan as a mutually beneficial arrangement: the moose hunt will help stop ecological damage by stabilizing the population on the island, and also provide an economic benefit to the state due to increased tourism to the area.[xix]
This resolution can serve as an effective signal to federal agencies of the state’s willingness to participate in regulation. Such a signal might be necessary to get favorable agency action. This is because the Supreme Court has limited the federal government’s ability to mandate state action.[xx] The Court in Printz held that the federal government violated principles of federalism when it required state officers to run background checks as part of a federal regulator scheme.[xxi] In just such a way, the NPS likely could not conscript the state to administer a moose license lottery, though it could do so itself. Additionally, the NPS could offer the state federal funding to operate a licensing system, and it would be up to the state whether or not to accept.
In light of this, a resolution by the state makes good sense if the state sees a particularly attractive solution to a federal problem. The NPS essentially has two options: unilateral action, or coordination with the state. Unilateral action might be unappealing for multiple reasons. In this case, the NPS might not want to invest resources in a hunt system. It could be cheaper and easier to just cull the moose or continue with wolf relocation. Alternatively, the NPS could implement a hunt and pass off regulatory duties to the state, but only if the state consents. A lottery hunt would involve prior research to decide how much to charge and how many permits to allow. This burden is not insignificant, especially if it could end up being futile without the assistance of the state.[xxii] Michigan’s resolution, if passed, would demonstrate to the NPS that there is significant interest by state actors in working together on this specific plan. The resolution would signal the state’s consent, which would allow the NPS to take affirmative steps in this direction without fear of overstepping the limits of federalism.
To conclude, the Michigan state legislature’s proposed resolution could have a large impact, even if it has no legal force. Because of Isle Royale’s unique circumstances, the NPS might have lower incentives to coordinate with the state. Because of this, state actors have a strong incentive to signal to the NPS desired strategies. A resolution by both houses of the legislature would be a powerful signal and would encourage the NPS to choose the state’s preferred solution without fear of violating the state’s rights.
*Gavin Uitvlugt is an Associate Editor on MJEAL. They can be reached via email at firstname.lastname@example.org.
[i] Isle Royal, National Park Service, https://www.nps.gov/isro/index.htm (last visited Nov. 15, 2019). Land operated by the National Park Service falls into twenty different categories. These categories function as a loose hierarchy with national parks receiving the most prestigious treatment. Garrett Rose, “Reservations of Like Character” – the Origins and Benefits of the National Park System’s Classification Hierarchy, 121 Penn St. L. Rev.355, 369-71 (2016).
[ii] H.R. 154, 2019 Leg. (Mich. 2019).
[iv] For a discussion of the uses of resolutions by state legislatures, see generally Robert Moore, Legislative Resolutions: Their Function and Effect, 31 Tex. L. Rev.417 (1953).
[v] H.R. 154
[vi] See Peter A. Appel, The Power of Congress “Without Limitation”: The Property Clause and Federal Regulation of Private Property, 86 Minn. L. Rev. 1, 75-79 (2001).
[vii] See generally Julie Luman and Sanford Rabinowitch, Preemption of State Wildlife Law in Alaska: Where, When, and Why, 24 Alaska L. Rev.145 (2007).
[viii] Hunt v. United States, 278 U.S. 96 (1928).
[ix] Logan Glasenapp, Collaborative Federalism: the Sage Grouse Solution to the Sagebrush Rebellion, 8 Ariz. J. Envtl. L. & Pol’y1, 4-9 (2017).
[x] Carolyn M. Landever, Whose Home on the Range? Equal Footing, the New Federalism and State Jurisdiction on Public Lands, 47 Fla. L. Rev. 557, 557-59.
[xi] Id. at n. 16 (“The federal government owns a substantial percentage of lands in each of the 12 western states: 88% in Alaska; 85% in Nevada; 65% in Idaho; 63% in Utah; 52% in Oregon; 49% in Wyoming; 46% in California; 44% in Arizona; 36% in Colorado; 33% in New Mexico; 29% in Montana; and 28% in Washington”) (citing George Coggins and Charles Wilkinson, Federal Public Land and Resources Law 13(2d ed. 1989)).
[xii] Id. at 622-36.
[xiii] Cf. Ryan Stoa, Cooperative Federalism in Biscayne National Park, 56 Nat. Resources J.81, 94 (2016) (discussing how Biscayne National Park’s implementing legislation included provisions that allow the state of Florida to regulate fishing within the park).
[xiv] Isle Royal Wolf Population Update May 29, 2019, National Park Service, https://www.nps.gov/isro/learn/news/isle-royale-wolf-population-update-may-29-2019.htm (last visited Oct. 28, 2019).
[xv] See Diane Dale, The Boundary Dilemma at Shenandoah National Park, 16 Va. Envtl. L.J.607, 614-20 (1997).
[xvi] In 2018, the National Park Service reported the island had 18,479 visitors. Isle Royal Park Statistics, National Park Service, https://www.nps.gov/isro/learn/management/statistics.htm (last visited Oct. 28, 2019)
[xvii] H.R. 154
[xviii] See e.g., Moose Permit, Maine Department of Inland Fisheries and Wildlife, https://www.maine.gov/ifw/hunting-trapping/moose-permit.html (last visited Nov. 15, 2019).
[xix] H.R. 154
[xx] See, e.g., Printz v. United States, 521 U.S. 898 (1997).
[xxi] Id. at 935.
[xxii] Both unilateral or coordinated actions leave the agency open to third party lawsuits on administrative law grounds. See e.g., WildEarth Guardians v. Nat’l Park Serv., 703 F.3d 1178 (10th Cir. 2013).