CHAPTER SIX: ACQUISITION AND MANAGEMENT OF WILDLIFE HABITAT The well being of wildlife is vitally dependent upon the health of its habitat. It is therefore abundantly clear that the management of federally owned lands, which comprise nearly one third of the total land area of the United States, is of great significance for much of the nation's wildlife. Without some mechanism for assuring that the management of those lands protects their habitat values, the regulation of direct taking and the regulation of commerce in wildlife necessarily constitute an incomplete federal program of wildlife conservation. This chapter examines the laws pertaining to the conservation of wildlife on federal lands. The initial part of the chapter treats those federal lands which were acquired or reserved expressly for wildlife conservation purposes. It examines both the laws providing for their acquisition and those providing for their administration. The second part of the chapter concerns the national forests and national resource lands, federal lands required to be managed under the principle of "multiple use", in which wildlife conservation is but one of several purposes to be served. The final part examines the wildlife aspects of the management of lands devoted to special purposes other than wildlife conservation, including the national parks and monuments, wilderness areas, marine sanctuaries, and military reservations. A. The National Wildlife Refuge System The National Wildlife Refuge System is the only extensive system of federally owned lands managed chiefly for the conservation of wildlife. Its origins can be traced to the turn of the century, when the first federal wildlife refuges were established by Presidential proclamation.1/ Soon thereafter, Congress also became directly involved in the creation of wildlife refuges, first by authorizing the President in 19052/ and 19063/ to designate areas within Wichita National Forest and Grand Canyon National Forest, respectively, as wildlife ranges, and then by itself establishing a National Bison Range in Montana in 1908.4/ The stimulus for establishing a systematic program of refuge acquisition was provided by the Migratory Bird Treaty Act. The failure of that Act to authorize the acquisition of migratory bird habitat came to be recognized as a serious shortcoming. To provide the needed acquisition authority, the Migratory Bird Conservation Act was passed in 1929.5/ The Conservation Act established a Migratory Bird Conservation Commission to review and approve proposals of the Secretary of the Interior for the purchase or rental of areas under the Act.6/ As originally enacted, the Conservation 2/ Act of Jan. 24, 1905, ch. 137, 33 Stat. 614, (current version at 16 U.S.C. §§684-86 (1970)). 3/ Act of June 29, 1906, ch. 3593, 34 Stat. 607, (current version at 16 U.S.C. §§684-86 (1970)). 4/ Act of May 23, 1908, ch. 192, 35 Stat. 267, (current version at 16 U.S.C. $671 (1970)). 5/ 16 U.S.C. $$715-715d, 715e, 715f-715k, and 715n-715r (1970 & Supp. IV 1974). །。 The authority of the Secretary of the Interior to initiate acquisition proposals was originally vested in the Secretary of Agriculture. Both Secretaries serve on the Migratory Bird Conservation Commission, as does the Secretary of Transportation and two members each from the Senate and the House of Representatives. For purposes of considering the acquisition of areas within a particular state, the ranking officer of the game agency of that state is an ex officio member of the Commission. 16 U.S.C. $715a (1970). Act provided that all refuges acquired pursuant to its authority be operated as "inviolate sanctuaries."7/ By amendments in 19498/ and 1958,9/ however, the Secretary was authorized to permit public hunting, first on not more than twenty-five percent, and then forty percent, of the total area of any such refuge, if "compatible with the major purposes for which such areas were established. One final noteworthy feature of the Conservation Act is that it, unlike most other statutes authorizing federal acquisition of land, requires that the Secretary first obtain the consent of the state in which the lands to be acquired are located before acquisition can be carried out.10/ Enactment of the Migratory Bird Hunting Stamp Act in 1934 assured a steady source of funding for refuge acquisition under the Conservation Act, but in a way that almost assured the development of a refuge system keyed principally to the production of migratory waterfowl.11/ Although acquisition authority was contained 7/ 16 U.S.C. $715d (1970). 8/ Act of Aug. 12, 1949, ch. 421, §2, 63 Stat. 600. नेकोको 9/ 10/ Act of Aug. 1, 1958, Pub. L. No. 85-585, §2, 72 Stat. 486 74 Cong. Rec. 17172 (1961) (remarks of Senator Hruska). 11/ For a discussion of the Migratory Bird Hunting Stamp Act, 16 U.S.C. $$718-718b and 718c-718h (1970 & Supp. IV 1974), see Chapter Eight infra at text accompanying notes 4-13 . A 1958 amendment authorized the expenditures of funds derived from the Hunting Stamp Act for the acquisition of "waterfowl production areas", which are small wetland or pothole areas. The acquisition of such areas is expressly exempted from the limitations and requirements of the Conservation Act, and such areas are likewise exempt from its "inviolate santuary" provision. 16 U.S.C. $718d (c) (1970). in a number of subsequent statutes, including the Fish and Wildlife Coordination Act, 12/ the Fish and Wildlife Act of 1956,13/ the Land and Water Conservation Fund Act, 14/ and the Endangered Species Acts of 1966, 1969, and 1973,15/ the Conservation Act continues to be a major source of authority for wildlife refuge acquisition.16/ Before turning to a consideration of some of the litigation concerning the scope of federal acquisition authority under the Conservation Act, mention should be made of the Department of Agriculture's Water Bank Program for Wetlands Preservation, carried out under authority of the Water Bank Act of 1970.17/ Under that program, the Secretary of Agriculture may enter into ten-year renewable agreements with private landowners 12/ The Fish and Wildlife Coordination Act provides that lands acquired or administered by a federal agency pursuant to the Act's authority may be made availabe to the Secretary of the Interior for administration by him "where the particular properties have value in carrying out the national migratory bird management program." 16 U.S.C. $663(b)(1970). It is discussed in detail in Chapter Seven infra at text accompanying notes 1-58. 13/ 14/ 15/ 16/ 17/ 16 U.S.C. $742f (a) (1970). 16 U.S.C. $4601-4 through 4601-11 (1970 & Supp. IV 1974), The acquisition authority of the Endangered Species Acts is Despite the many sources of acquisition authority, the Advisory Committee on Wildlife Management reported to Secretary of the Interior Udall in 1968 that "there is not support nor clear authority for the Bureau of Sport Fisheries and Wildlife to extend the refuge system in relation to wildlife needs other than for migratory birds." The Committee's report, commonly known as the Leopold Report, is reprinted in Department of the Interior, Fish and Wildlife Service, Final Environmental Statement, Operation of the National Wildlife Refuge System, app. W (Nov. 1976). 16 U.S.C. §§1301-11 (1970). and operators in important migratory waterfowl nesting and breeding areas. 18/ In return for payment of an agreed upon annual fee, the participating landowner or operator agrees "not to drain, burn, fill, or otherwise destroy the wetland character" of areas included in the program, or "to use such areas for agricultural purposes."19/ If a private party violates the agreement and his violation "is of such a nature as to warrant termination of the agreement", he must forfeit all rights to receive future payments and refund past payments under the agreement.20/ The total payments which the Secretary is authorized to make in any one year under the program may not exceed $10 million. 21/ Thus, the Water Bank Program offers a significant alternative to outright acquisition for the protection of migratory bird habitat. The scope of the authority of the federal government to acquire lands for wildlife refuge purposes has been tested in only a very few cases. Swan Lake Hunting Club v. United States was one of the most significant of these.22/ It involved a challenge to the au 18/ Id. $1302. 19/ 20/ Id. §1303. The annual payment is greater if the participa- Id. $1303. The administrative regulations of the Depart- |