By Lowell Baier  |  March 30, 2022

In Federalism, Preemption, and the Nationalization of American Wildlife Management: The Dynamic Balance Between State and Federal Authority, author, attorney, and legal and environmental historian Lowell E. Baier succinctly captures the complex role of federalism in the history of American wildlife management.

The American colonies were founded by Pilgrims and other English colonists seeking religious freedom and the right to govern their own affairs. From the earliest days this included the freedom to hunt and fish, and wild game, meat, and furs provided important food supplies and tradable goods. The American tradition of freedom and local independence ultimately led to the Revolutionary War, and endures in our modern government through the U.S. Constitution, which enumerates and limits federal powers while reserving other powers to the states, including the power to manage fish and wildlife.

From this starting point, Baier weaves together the myriad threads that have all influenced American wildlife management and the allocation of authority between state and federal governments. He chronicles how, as the decades and centuries have passed, we have drifted from a rigorous application of federalism into a muddled, confused constitutional jurisprudence in which federal and state powers overlap and conflict in a myriad of different ways.

One such area is wildlife management, where the federal role has steadily grown, with the Lacey Act (1900), Migratory Bird Treaty Act (1918), Pittman-Robertson (1937) and Dingell-Johnson (1950) Acts, Bald (and Golden) Eagle Protection Act (1940, expanded 1962), and ultimately the Endangered Species Act (1973) shifting more and more authority to the federal government, at the expense of the states. An unfortunate consequence of this evolution has been increasing conflict in wildlife management, as the dynamic balance between federal and state authority has steadily shifted towards the federal government.

Baier explains how our modern failure to adhere to core principles of federalism has led to a broken wildlife management system, characterized by bitterness and distrust between state and federal officials, all to the detriment of wildlife, ecosystems, and people as well. Congress has placed ever-increasing responsibility for fish and wildlife within federal agencies, but not followed through with sufficient funding to realize the vision of federally-led wildlife management. The result has been too many different visions competing for too few resources.

The U.S. Supreme Court shares responsibility for this state of affairs. As Baier demonstrates through a careful and accessible recounting of significant cases, the Court has failed to develop and sustain a consistent application of federalism, instead leaving supporters of both state and federal authority unsure where any particular case might end up. At the same time, the Court has recognized the Endangered Species Act as an absolute directive for conservation of listed species under federal leadership, beginning with the famous snail darter case, TVA v. Hill, in 1978. It has both precipitated a federalism crisis in wildlife management due to its expansive interpretation of federal authority, and also perpetuated the problem with a lack of clear and consistent standards for preemption.

The solution, Baier explains, is to look to our federalist roots by returning more authority over wildlife to the states. There is already vast wildlife expertise within state fish and wildlife agencies, and every state has adopted grassroots plans for the conservation of species of greatest conservation need, including federally-listed and at-risk species, 12,000 species altogether. With more funding, such as the pending “Recovering America’s Wildlife Act,” states will be able to realize the vision of these plans.

Baier calls upon Americans to listen to each other and seek common ground, to recapture the spirit of the Pilgrims and the other early colonists, and to understand the historical events that have brought us, and our wildlife, to today’s situation. By knowing our shared history, we can understand our fellow citizens, and begin to work together in a spirit of constructive cooperation for the betterment of our nation’s wildlife and biodiversity.

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Federalism, Preemption, and the Nationalization of American Wildlife Management:

• Presents the concept of federalism, and its variations of “dual federalism” and “cooperative federalism,” in easily understood language.
• Traces the history of federalism in America, including the competing visions of the founding fathers, important Supreme Court cases, and outside events, demonstrating how the nation has experienced a steady shift towards a larger federal government and greater federal authority over wildlife.
• Explains the impact of outside crises such as the Civil War, Prohibition, and the Great Depression on the American system of governance.
• Describes the role of fish and wildlife in American history, and the many instances where wildlife and federalism have intersected.
• Reveals how explicit legislation, judicial interpretation, and beneficial grants-in-aid combine to place de facto authority over fish and wildlife in the federal bureaucracy.
• Proposes concrete solutions such as more rigorous adherence to federalism, greater authority in state fish and wildlife agencies, and adequate levels of funding in order to improve fish and wildlife conservation in America.
• Imagines a world in which the conservation of wildlife and biodiversity is a unifying force bringing Americans together for the common good of all, rather than dividing them based on employer or political affiliation.

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Federalism, Preemption, and the Nationalization of American Wildlife Management is a resource for elected officials, judges, state and federal fish and wildlife managers, and other policymakers seeking to understand the history of American wildlife management and the system that it, and they, share. It is an accessible historical introduction to complex concepts in American history and constitutional law, suitable for both university settings and for all Americans with an interest in wildlife conservation.

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, Ph.D.
Professor of Law
Antonin Scalia School of Law
George Mason University

Author of Real Federalism: Why It Matters, How Could It Happen; Federal Preemption: States’ Power, National Interests (co-editor); and The Demise of Environmentalism in American Law

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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, Ph.D., J.D.
David Daniels Allen Distinguished Chair in Law
Co-Director, Energy, Environment, and Land Use Law Program
Vanderbilt University School of Law

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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, J.D.
Dean and C. Hugh Friedman Professor of Law
University of San Diego School of Law

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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, J.D.
George P. Smith, II Distinguished Professor of Law
Professor of Public and Environmental Affairs (adjunct)
Indiana University Maurer School of Law

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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, Ph.D.
Professor, Natural Resources Policy
Director, Bolle Center for People and Forests
W.A. Franke College of Forestry and Conservation
University of Montana

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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, Ph.D., CWB
Scientist Emeritus, Cooperative Fish and Wildlife Research Units
Past President, Honorary Member, and Fellow, The Wildlife Society
2020 Aldo Leopold Memorial Award, The Wildlife Society
2014 George Bird Grinnell Memorial Award, Wildlife Management Institute
Department of the Interior’s Meritorious Service Award

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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, J.D.
Attorney at Law
Former Secretary
California Natural Resources Agency (1991-1999)

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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

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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, J.D.
College of Law
University of Wyoming