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Show to relate that policy to public land policy is rooted in the divided jurisdiction of Congressional Committees. The recommendation we make in Chapter Twenty would eliminate the division and permit the two policies to be considered at the same time. There are jurisdictional uncertainties between the states and the Federal Government that must be clarified before a good foundation for realization of the fish and wildlife potential of the public lands is established. In addition, a number of special problems require policy changes to bring the interests involved into better balance. Clarification of Federal and State Authority Recommendation 60: Federal officials should be given clear statutory authority for final land use decisions that affect fish and wildlife habitat or populations on the public lands. But they should not take action inconsistent with state harvesting regulations except upon a finding of overriding national need after adequate notice co, and full consultation with, the states. Under their general police powers, the states have traditionally regulated the taking and transport of fish and wildlife within their borders. Resting on well established law, such police powers have extended to the regulation of harvesting game on the public lands in the absence of conflicting Federal legislation. Equally well established, however, is the power of Congress to provide for the use and protection of its own public lands. In cases of conflict between the objectives of the two sovereigns, the supremacy clause (Article VI, clause 2) of the United States Constitution precludes state control over authorized Federal activity in furtherance of its public land programs. Historically, the states have regulated the game population, and the Federal Government has managed the habitat. Conflicts have been few, and have generally been confined to situations where the Federal agencies have harvested game in disregard of state laws in order to protect public land values under their jurisdiction. The Supreme Court has sustained such Federal action. Increasingly, however, the line between the traditional functions has become shadowy. Since effective wildlife population management involves some degree of habitat management, the states are becoming increasingly concerned with programs of habitat management and with the effect of other public land activities on wildlife habitat. Nearly all states have developed programs to increase populations of fish 5 Hunt v. United States, 278 U. S. 96 (1928). 158 and wildlife, to control populations of wild animals to prevent them from increasing to the extent that the natural food supply cannot support them; and to limit undesirable species of fish and animals. Some of this work takes the form of manipulating the habitat, and all of it is affected by existing habitat conditions. Similarly, the Federal land managing agencies have developed policies and programs of their own on the lands they administer. Much of the habitat work they do on- public land is the same kind of work that the states do or would like to do, and much of it is done cooperatively with the states. Other public land programs, such as timber production and harvesting and providing for use of grazing resources by livestock, affect the vegetative resources that also make up the wildlife habitat. In turn, wildlife population control in many cases is necessary to protect other public land resources and values. Although the legitimate interests of both the state and Federal fish and wildlife programs have been on a theoretical collision course, administrative restraint and cooperation have generally managed to avoid major confrontations. However, in 1964 an opinion by the Solicitor of the Interior Department declared that "regulation of the wildlife populations on federally owned land is an appropriate and necessary function of the Federal Government when the regulations are designed to protect and conserve the wildlife as well as the land," and concluded that "this authority is superior to that of a state." 6 The Supreme Court has not yet ruled on the matter of Federal harvesting in conflict with state law, except in cases where necessary to "protect" Federal lands. However, the Solicitor's opinion has been reinforced by a recent Federal Court of Appeals decision sustaining the killing of deer by Federal officials, without obtaining state licenses, as part of an experimental program on the Carlsbad Caverns National Park in New Mexico.7 Although the paramount legislative authority with respect to all public lands is in Congress, it thus far has only provided clear legislative support for Federal agency harvesting regulation that is inconsistent with state law in connection with the wildlife refuge system and the national parks. We see the legitimate issues here as being whether the states should be given controlling decisional authority with respect to some aspects of public land management and, if not, how they can play an important role along with the Federal agencies on public lands. The matters in question concern the setting of wildlife production goals on the public lands; habitat protection and enhancement programs; setting harvesting regulations; and licens- « 71 Interior Dec. 469, 473, 476 (December 1, 1964). 7 New Mexico State Game Commission v. Udall, 410 F. 2d 1197 (10th Cir. 1969), cert, denied 396 U. S. 961. |