PART 3 - HISTORY & JURISDICTIONS
by Jim Beers
February 24, 2003
This is part three of a series.
The US Constitution (1787) established a regime of plant and animal jurisdiction and ownership unique in the world at that time. While limiting the Federal government to specific authorities and responsibilities, it divided Federal power between the ubiquitous three Branches. The Bill of Rights or first 10 Amendments (1791) concluded with Amendment X which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The jurisdiction over and management of all plants, insects, and animals is one of those powers. Only an Amendment to the Constitution or "Treaties made, or which shall be made, under the Authority of the United States" can legally alter this. No longer did wildlife and plants belong to royalty or the aristocracy, in America it belonged "to the people". States held the wild species in common ownership for all and men and women owned the domestic plants and animals outright. For at least 200 years anyway.
For the first hundred years, the Federal government concerned itself with protecting high seas fishery interests of Americans, cooperation with neighbors like Canada in the Great Lakes, and interstate and foreign commerce protection for farmers, ranchers, and businessmen dealing in wildlife and plants.
In the late 1800's western states resigned themselves to the Federal government retaining large portions of the West. This gave rise to acceptance by westerners of predator control and grazing allocation by Federal land administrators. Thus was born an uneasy concept of the Federal government being "more" than a private landowner and somehow immune to state jurisdiction over plants and animals.
During the First World War, President Wilson signed and the Senate ratified a Migratory Bird Treaty with Canada for about 200 species of birds that migrated between the two nations. Certain species like hawks, owls, pelicans, and cormorants were specifically excluded because of the damage they caused. More recently these and several others were included in Treaties with Mexico, Japan, and Russia. Primary management jurisdiction thereby was transferred from the state governments to the Federal government for these named species.
In 1973 the Endangered Species Act was passed by Congress and signed by the President. The authority for the Federal government to constantly name species, subspecies, etc. as Endangered and thereby seize jurisdiction and management authority from the states is claimed to be a UN Treaty signed by many nations. Two points: First, I would assert that a UN Treaty is not a Treaty as mentioned in the Constitution. In our Treaty with Canada for instance, they do certain things and we do certain things or the Treaty can be broken. The UN Treaty is broken and ignored by others regularly and we have no recourse because of the brokerage role of the UN. In other words I think the Federal government has no authority to usurp state authority over plants and animals. They could offer money or assistance but not override the interests or authority of the states. Second, and most important, those of us alive today have seen the Federal government unilaterally usurp jurisdiction and management authority legislatively from the states over Endangered Species, Threatened Species, Marine Mammals, Wild Horses, and Animal Welfare. This has then been used to justify expanded power by the Federal government (at the expense of "the States" and "the people" over loggers, ranchers, fishermen, home-builders, hunters, trappers, medical experimenters, pet breeders, campers, etc., etc. The point being that passing a law to "do something" about Invasive Species is greeted mostly with a yawn by the public and with dollar signs by many others and dreams of increased power by others yet. No one any longer questions the legality, much less the results of these plunges into Federal power-building which the Founding Fathers so rightly feared.
This last point was confirmed and made shockingly apparent to me last week. The polling question on the History Channel website was, "who should be more powerful, the state government or the Federal government?" The Constitution names specific roles for each; not which is more "powerful". The Civil War settled the Union of the states, not who is more powerful (the northern states under a Federal government defeated the southern states under a Confederate government). President Lincoln didn't defeat South Carolina; he defeated President Davis. Like any enduring marriage, our national life has prospered over an equal relationship with specific roles for each spouse (state and Fed) and a shared sense of devotion to each other. The more we speak of who is more "powerful" the deeper our problems become.
In the early 1900's Federal, state, and University researchers studied ways to minimize or eliminate damage caused by predators (wolves, cougars, coyotes, and bears) and public employees successfully exterminated wolves while depressing the numbers and distribution of the others until control reductions 40 years ago allowed coyotes to explode back into the East and state abrogation of management responsibility allowed cougars in California to once again kill and maim humans, pets, and livestock while reducing once robust wild bighorn sheep populations in the Sierras to Endangered status. Similar elimination of bear management is allowing depredations of burgeoning bear populations to endanger humans and cause extensive economic damage once again.
The Federal government also specialized in bird research (as primary managers of migratory birds). Damage from ducks, geese, blackbirds, and others was reduced and direct control (i.e. killing) was the final and often best method.
In the 1950's increased international travel by tourists and Servicemen caused the Federal government to 1.) begin banning from importation (based on the legitimate responsibility of regulating foreign commerce) what were called Injurious Wildlife like mongoose and 2.) begin searching the world for new and desirable species to release in the US such as chukars from India and snow grouse from Afghanistan. The Federal government was also busy buying large marshes specifically for the breeding, migrating, and wintering needs of waterfowl. Many of these had and still have prized non-native species on them such as the Sika deer from Japan on Chincoteague National Wildlife Refuge and the Assateague National Seashore Park and the sambur deer from India on the Saint Vincent's Island National Wildlife Refuge.
Nearly all the "calendar picture Invasive Species" I mentioned in Part 2 were present in the 1950's and 60's. None were on the old Injurious Wildlife List that I enforced as a US Game Management Agent at the New York port-of-entry in the early 1970"s. Their visibility as a potential Federal concern arose as "the usual suspects" (who I will describe in Part 5 "The Pushers") saw how the Endangered Species Act has generated funds and influence for academicians, budgets and career enhancements for bureaucrats, votes for politicians, and power for non-governmental groups bent on a string of harmful things I will discuss further in Part 5. Let it suffice to say that claims of "billions" in damage and "millions of acres" are everywhere in Washington today. Slick publications, handouts, proposals, and publicity appear in every nook and cranny. Invasive Species are like the cherry blossoms swelling in anticipation of the right conditions to burst forth.
Before I can explain more about the people and groups pushing the Invasive Species agenda today we will need to examine The Biology of Invasive Species. The next article, Part 4, will attempt to do just that. New age concepts such as Pre-Columbian Ecosystems and Native Ecosystems, while nowhere to be seen now, will burst forth when legislation is passed giving the Federal government "jurisdiction" over non-native species (i.e. Invasive Species) that cause "harm". The elastic and nebulous terminology ("ecosystem", "harm", et al) propping up this concept will serve as superhighway venues for an incredible range of mischief for which, like Endangered Species effects today, there will appear to be no remedy short of what the Founding Fathers began signing on the 4th of July 1776.
Jim Beers is a 33 year veteran of the United States Fish and Wildlife Service, and a great advocate of private property rights.
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