Exam 3 Flashcards
Wildlife Trust Doctrine
-The government (states and federal) holds wildlife in trust for the people
I own a piece of real estate and there’s a squirrel, who owns it?
The people of the state
I’m on federal property and theres a squirrel, who owns it?
The people of the US
Regardless of the property rights, the landowners who control the habitat…….
Ultimately influence wildlife
when a landowner posts their land in NYS, they …….
-landowner revokes the “implied license” in NYS law that allows hunters/anglers to hunt/fish on private lands when all laws are followed
“implied license” in NYS law
-that allows hunters/anglers to hunt/fish on private lands when all laws are followed
When is the “implied license” revoked
when the landowner asks you to leave property
to not be liable for injuries on their land, what must a landowner do?
- Warn about the dangerous condition
- Make the dangerous condition safe
Views of wildlife change from ______ values to _______ values in the late ______ century
- Economic
- Sporting
- 19th
The “original” US fish and wildlife service (est. 1885)
- was the successor to the US Bureau of Biological Survey
- Had relatively little authority, just monitered
Licensing and licensing fees_____
-provides funds for wildlife management (to improve wildlife)
Controlling the take methods:
- Ends of market hunting
- Licensing and licensing fees
- Bag limits
- -Seasons
How were populations managed
- Hatcheries and game farms
- Predator control
- NWR system and state wildlife management areas
what provided money for state acquisition of land?
Duck stamps and pittman-robertson
Lacey Act (1900)
- first US wildlife statute
- Made interstate transportation of illegally taken wildlife a federal crime
Migratory Bird Treaty Act
-Federal permit required for killing migratory birds
Jay (Ding) Darling
- Chief of US Bio Survey
- NWF founder
- designed the first migratory bird stamp
Duck stamp act
- Requires duck stamp for hunting migratory waterfowl
- Funds from the sale of duck stamps go into special account that can only be used to acquire refuge areas and waterfowl production areas
- benefits artists too
what were Ding Darlings cartoons of
-wildlife and natural resources that made the public aware of the need for wildlife conservation
Kleppe v. New Mexico
-Established that the fed government cay legislate on retained federal lands
Retained lands
-Lands that the US government has always owned
Acquired lands
Kleppe does not apply, so the laws of the state where the lands are located generally apply
NFs and BLM lands
feds usually don’t exercise rights (state law generally applies)
FWS and NPS lands
Feds sometimes have their own rules (state laws sometimes apply)
Wildlife law is still largely a state prerogative, exceptions are:
- Migratory waterfowl
- Endangered species
- Marine species
Pittman-Robertson Act created an excise tax on:
- Arms, ammunition, archery gear (11%)
- Handguns (10%)
Most of the money made from the Pittman-Robertson Act is given to the _____ to be used for:
- states
- acquisitions, maintenance, and operation of wildlife management areas (74%)
- Wildlife surveys and research (26%)
Federal funding for state programs ACTS
- The Pittman-Robertson Act
- The Dingell-Johnson Act
- Land and Water Conservation Fund
- Wildlife Habitat Incentive Program
The Dingell-Johnson Act
- Established an excise tax on fishing equipment, boats and outdoor fuel that is used to restore sport fisheries
- Only for sport fishing and not commercial fishing
WHIP
-Wildlife Habitat Incentive Program
Wildlife Habitat Incentive Program
- federal cost shared program that funds wildlife based conservation activities by private land owners
- Landowners pay 75% fed gov pays 25%
Endangered Species Act was enacted in _____ and amended in _____
1966, 1969
ESA protects:
- genetic diversity by protecting species and subspecies
- landscape diversity and habitats
Responsible agencies of the ESA
-FWS: animal/freshwater fish
-NOAA fisheries: marine fish and animals
DOA: plants
Endangered
in danger of extinction throughout all or any significant portion of its range
Threatened
likely to become an endangered species in the foreseeable future
2 criteria for endangered species
1) and sub species
2) any distinct population segment of any vertebrate species
ESA listing
- no species receives ESA protection until it is listed
- Anyone may petition the Secretary to initiate the listing process
What is ESA listing based solely on?
the best scientific and commercial data
How did the congress try to control listing
by limiting funds to the FWS’s listing department
Critical Habitat
- if prudent to do so and is determinable, must designate no later than a year after the listing
- economic impacts must be considered when designating critical habitat
Recovery plans
-required unless would not promote conservation of the species
Prohibitions
- Section 7 federal government
- section 9 non federal government
Section 7 Federal Government
- Limits what the fed gov can do
- federal agency cannot “jeopardize” species or adversely affect critical habitat
Section 9 non federal government
-prohibits individuals, companies, states, native american tribes, etc from taking an endangered species
What are the 2 types of takings
- Direct takes
- Indirect takes
Direct take
-harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect and ES
Indirect take
-Agency defined ‘taking’ to also include significant habitat modification
Exception to Section 7
-the god squad
Exceptions to Section 9
- protection of humans
- scientific permits
- native american tribe permits
- incidental take permits
- safe harbor agreements
- experimental agreements
The God Squad
- Endangered species committee
- can approve a project that will jeopardize a listed species or its critical habitat if four criteria are met
Section 10 added exceptions (to section 9)
- Incidental take permits
- safe harbor agreements
- experimental agreements
Incidental take permits
- the secretary can issue a permit for incidental takes
- requires applicant to develop a Habitat Conservation Plan (HCP_
Safe harbor agreements
- for landowners that improve the ES habitat on their property
- allows these landowners to destroy habitat in the future
Experimental populations
-non-essential populations of ES’s can have less protection than other ES populations
Water rights system
- Riparian system: east of the 100th meridian
- Appropriation system: west of the 100th meridian
Riparian rights basic rule
-flowing waters and surface waters are subject to riparian rights (groundwater not included)
Info on riparian rights
- owner of land adjacent to watercourse holds riparian rights
- riparian rights are transferred when lands holding those rights are transferred
if you have riparian rights you have the right to:
- reasonably use water for either consumptive or non-consumptive purposes
- divert and/or impound water for a period of time
prior to appropriation water rights:
-west was owned by the federal government, therefore everyone else was a trespasser
Mining acts of 1866 and desert land act of 1877:
severed water from the public domain and fed government relinquished all sovereignty over waters
Process of obtaining prior appropriation rights
- file “notice of intent” with appropriate state administrative agency
- Divert water for a “beneficial use”
Is the west going to run out of water?
No, they will just buy more water rights from farmers
Groundwater in the west
- based on a prior appropriation rights system but much variation
- if you were the first person to pump water out of the ground then you have first priority
groundwater in the east (3 uses)
- Rule of capture
- Riparian rights
- reasonable use
Rule of capture
-allows landowners to capture as much groundwater as they can put to a beneficial use (NY rule)
Riparian rights for ground water
allows landowners to extract an amount of water based on the size of landowners surface area
Reasonable use
allows landowners to extract unlimited amount of groundwater, as long as the result does not unreasonably damage other wells or the aquifer system
Ecological benefits of wetlands
- filtration
- wildlife habitat
- flood control
- open space
- recreation
wetland permits
-cannot discharge dredged or fill materials into the waters of the us, including wetlands adjacent to those waters, without a permit issues by the ACE
cannot dredge or fill wetlands without….
permits
Waters of the US include:
- wetlands adjacent to the waters of the us
- wetlands connected to the waters of the us via surface water
Need permit to dredge and/or fill “Waters of the US”. These include wetlands adjacent to:
- (a)Tidal Waters
- (b)Interstate Waters
- Intrastate navigable-in-fact waters that flow into (a) or (b)
- Continuous flow from non-navigable-in-fact waters that flow into (a) or (b)
do not need permit to dredge/fill::
isolated wetlands (20% of all remaining wetlands)
WOTUS
waters of the us
Case by Case analysis of….
- Intermittent Waters
- Army Corps of Engineers must determine if the use, degradation or destruction of intermittent waters could affect interstate commerce, the “Waters of the U.S.”
Intermittent waters
non navigabile, non continuous flow
what are wetlands?
- 14 continuous days of saturated conditions at or near the surface in the growing season
- hydric soils
- must support facultative or obligate plants
What is the process for obtaining a wetland permit
- ACE district engineer makes decision on whether to issue permit after:
- > landowner submits permit application
- > notice to public
- > opportunity for public comment
A wetland permit expires after:
5 years
Nationwide (general) permits
- Authorize 52 activists
- If a nationwide permit can be used, applicants use a simplified permitting process and submit reduced paperwork
Individual (standard) permit
- For activities not covered by nationwide permits
- Require landowners to mitigate the impact that their activity will have on wetlands in a specific order (3)
Individual permit order of impacts
- Avoid impact
- Minimize impact
- Mitigate impact
Avoid impact
-owner must avoid destroying wetlands as much as possible
Minimize impact
-Landowner must minimize impact on disturbed wetlands
Mitigate impact
- Landowner must mitigate the impact on the disturbed wetlands by creating wetlands to compensate for destroyed wetlands
- ratio is usually greater than 1:1
