La Cabra en la Sierra: How a Local Dispute Over Goats Became a Study in State Wildlife Management Authority
| Author | Devin Kenney |
| Position | Independent Scholar |
| Pages | 650-717 |
e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2015 e Institute for Migrant Rights Press
650
Note. I am very grateful to the many, many people that have had a part in making
this paper possible. I want to thank rst Professor Carol Bambery, in whose class the
genesis of this paper began. I also want to thank her for introducing me to the Attorneys
General at the Utah Department of Wildlife Resources, Martin Bushman and Greg
Hansen. e input of Mr. Bushman and Mr. Hansen was invaluable in guiding this
project; I want to thank them especially for their substantive feedback and criticism. I
also must thank Professors Noga Morag-Levine and Kevin Saunders. Professor Morag-
Levine has been a mentor gure to me ever since the Spring of my 2L year and I was very
excited that she agreed to supervise me in this vast undertaking. Her insightful feedback
and unwavering support more than met my very high expectations. Professor Saunders,
too, was a source of signicant insight; the teaching that I have received from him during
my law school career has signicantly expanded my viewpoint and understanding of
the law. Finally, and most importantly, I want to thank my wonderful wife Traci and
amazing kids, Lincoln and Quinn. ey sacriced their husband and father to make this
work possible; its pages are a testament to their support. ank you!
La Cabra en la Sierra
H L D O G B S
S W M A
dEvin KEnnEy
Independent Scholar
E-mail: devintkenney@gmail.com
Although it may counter-intuitive, in the United States each individual State
has authority to manage federal property in the absence of Congressional
direction to the contrary. Recently, this jurisdictional conict has come to a head
in Utah as the State has introduced non-native mountain goats near federal
property to increase recreational opportunities. is article discusses the sources
of federal and State wildlife management authority and concludes that the State
of Utah, along with any other of the several United States, has the authority to
unilaterally introduce wildlife onto federal land.
Keywords: Administrative Law, State v. Federal Law, Constitutional Law, Wildlife
Management, Conservation Law, Municipal Law.
Devin Kenney
La Cabra en la Sierra
651
I. INTRODUCTION
On June 4, 2013 the Utah Wildlife Board approved the Statewide Man-
agement Plan for Mountain Goat, a 5 year planning document governing
mountain goat management activities by the Utah Division of Wildlife
Resources (“DWR”).1 As part of the plan, the Wildlife Board approved
the translocation2 of 20 mountain goats into the La Sal Mountains.3 e
La Sals4 are largely comprised of federal lands owned and managed by the
United States Forest Service (“the Forest Service”) as the Manti-La Sal
National Forrest.5 Shortly thereafter, the Forest Service received a request
from a concerned citizen group requesting that the agency perform a Na-
tional Environmental Policy Act (“NEPA”) analysis on the introduction.6
e Forest Service, in conjunction with other federal land management
agencies,7 may act to control wildlife on federal property to the extent
1. U D. W R., U M G S M
P, available at https://wildlife.utah.gov/hunting/biggame/pdf/mtn_goat_
plan.pdf.
2. “A translocation is the intentional release of animals to the wild in an attempt to
establish, reestablish, or augment a population . . . .” Brad Grith, J. Michael
Scott, James W. Carpenter, & Christine Reed, S. Aug. 4, 1989, at 477.
3. Dylan Brown, In Utah Land-Use Fight, 18 Goats become Unlikely Stars,
E. E N, Sept. 3, 2014, available at http://www.eenews.net/
stories/1060005159.
4. e name “La Sal,” meaning “Salt” in Spanish, refers to the disbelief exhibited of
early Spanish missionaries who, when they rst saw the mountain peaks blanketed
with snow during late August, concluded that the white they saw on the peaks
were “salt beds.” S V E, T D-E
J: T E T C, U, A,
N M 25-26 (Ted J. Warner ed., Fray Angelico Chavez transl.,
University of Utah Press ed., 1995) (1776).
5. U.S. Forest Serv., U.S. Dep’t Agric., Welcome to the Manti-La Sal National Forest,
http://www.fs.usda.gov/mantilasal (last visited Mar. 12, 2014).
6. Letter from Mary H. O’Brien, Utah Forests Program Director, Grand Canyon
Trust, to Nora Rasure, Regional Forester, Intermountain Regional Oce, United
States Forest Service, and Allen Rowley, Supervisor, Manti-La Sal National Forest
1 (Sept. 17, 2013) [hereinafter “Grand Canyon Trust letter”] (on le with Author).
7. Such as the Bureau of Land Management (“BLM”). For example, BLM is
authorized to manage the habitat, but not the wildlife itself. 43 C.F.R. § 24.4(d).
The Indonesian Journal of International & Comparative Law Volume II Issue 3 (2015) at 650-718
Devin Kenney
652
that Congress has so authorized agency intervention.8 erefore, the
agencies may act to protect endangered species,9 control or prohibit the
importation of certain species determined to be invasive,10 and, in the
case of the Forest Service, kill or otherwise remove wildlife that threaten
the destruction of federal property.11 is last power, the power to protect
managed land from destruction, is analogous to the private right of a
landowner to destroy wildlife that threaten his or her private property.12
8. Much like BLM, the Forest Service is similarly authorized to manage the habitat,
but not the wildlife itself. 36 C.F.R. § 293.10; 43 C.F.R. § 24.4(d). Both the
Secretary of Agriculture and Interior are authorized to close certain areas to shing
and hunting “for reasons of public safety, administration, or compliance with
provisions of applicable law.” Federal Land Policy and Management Act [hereinafter
FLPMA], 43 U.S.C. § 1732(b). However, even under these circumstances, “any
regulations of the Secretary concerned relating to hunting and shing pursuant
to this section shall be put into eect only after consultation with the appropriate
State sh and game department.” Id.
9. Endangered Species Act of 1973, Pub. L. 93-205, 16 U.S.C. §§ 1531-44.
10. See, e.g., Hawaii Tropical Forest Recovery Act, 16 U.S.C. § 4502a(a)(3)-(4) (2014)
(authorizing the Forest Service to “protect indigenous plant and animal species
and essential watersheds from non-native animals, plants, and pathogens [and]
establish biological control agents for non-native species that threaten natural
ecosystems.”); Lacey Act, 18 U.S.C. § 42(a) (prohibiting a list of specic animal
species and authorizing the Secretary of the Interior to enforce the Act). at the
Lacey Act makes explicitly criminalizes the introduction of enumerated species
further suggests the need for Congress to act.
11. Hunt v. United States, 278 U.S. 96, 99-100 (1928). In this instance, the
Department of Agriculture was acting pursuant to a Congressional mandate to
“preserve the forest . . . from destruction.” (Act of Congress Feb. 1, 1905).
12. Compare Hunt, 278 U.S. at 100 (noting that the Secretary’s action was “necessary
to protect the lands of the United States from serious injury”), with Annotation,
Right to kill game in defense of property, 21 A.L.R. 199 (1922). Although today
this right is strictly limited in many States, see, e.g., Utah Code Ann. §§ 23-16-2–4,
the consensus in the early twentieth century favored the right of the landowner
to protect his or her property, Annotation, Right to kill game in defense of property,
21 A.L.R. 199, 200 (1922) (“[A] statute forbidding, under penalty, the killing of
elk [or other wildlife], does not apply to a killing which is reasonably necessary
for the defense of persons or property.”). At the time, courts were inclined to nd
that preventing a property owner from protecting his or her property infringed the
person’s property right. Id. at 100.
Moreover, although the leading Supreme Court decision cast the State’s claim
to title as “lean[ing] upon a slender reed,” Missouri v. Holland, 252 U.S. 416,
434 (1920), the Supreme Court rearmed just four years after Holland and four
years prior to Hunt that “[t]he wild animals within [a State’s] borders are, so far as
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