plant and animal species."55/ This statement of management policy would mark a significant departure from the "featured species" concept that has characterized the management of some units of the System.56/ Other aspects of the bill would have introduced equally novel ideas into the Refuge System. Among these were provisions designating certain coastal Alaskan areas as "marine and estuarine" sanctuaries, whose boundaries would extend three, or in some cases five miles out to sea, thus holding out the potential of melding together the Refuge System and the "marine santuary" system of the Marine Protection, Research and Santuaries Act.57/ While the Dingell bill was not enacted, it represents the most comprehensive attempt thus far to give detailed legislative direction to the management of the Refuge System. As such, it will probably serve as the starting point for future such efforts. 55/ Id. $104(3)(E). 56/ The 1968 Leopold Report, supra note 16 at W-9, made the same call for ecosystem management of wildlife refuges in the following words: 57/ Each refuge, though part of a network, The Marine Protection, Research and Sanctuaries Act is dis- During the nineteenth century, the United States pursued an affirmative policy of disposing of the vast quantities of land which it obtained from other sovereigns as a result of its westward expansion. A variety of disposal laws encouraged homesteaders, miners, and others to convert useful areas of the public domain into private ownership.58/ Toward the end of that century, however, largely in reaction to widespread abuse of lands transferred to private owners, it came to be widely felt that the policy of wholesale disposal ought to be curbed somewhat.59/ The mechanism to accomplish this was the reservation or withdrawal of certain specially valuable lands from the operation of some or all of the disposal laws. Authority for the first systematic withdrawal of federal lands was provided by the Forest Reserve Act of 1891, which authorized the President to "set apart and reserve • public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations."60/ These public 58/ The term "public domain," in its most technical meaning, refers solely to those federal lands which were originally acquired by the United States from another sovereign and which have been continuously so held since the time of their acquisition. All other federal lands are referred to technically as "acquired lands." Although, for some purposes, substantive consequences sometimes attach to these distinctions, they almost never do for any purpose relating to wildlife. Accordingly, except where expressly so noted, no attempt is made in this chapter to adhere to these rigid distinctions. 59/ 60/ M. Clawson, America's Land & Its Uses 25 (1972). Act of March 3, 1891, ch. 561, $24, 26 Stat. 1103 (current version at 16 U.S.C. §471 (1970)). reservations, initially managed by the Interior Department's General Land Office, 61/ were the country's first national forests. The political pendulum soon began to swing the other way, however, as Western interests became angered by the magnitude of Presidential withdrawals and chafed at the restrictions against timber cutting, trespassing, and mining imposed by the Forest Reserve Act. 62/ The result was the Act of June 4, 1897, which restricted the President's authority under the earlier act by providing that "No public forest reservation shall be established except to improve and protect the forest within the reservation, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States."63/ This Act, which became known simply as the "Organic Act," prescribed the standards which were to govern the management of the national forests. It said not a word about wildlife. Literally, the language of the Organic Act quoted above merely limited the purposes for which national forests could be established to three: (1) protection of the forest; (2) securing favorable water flows; (3) furnishing a supply of timber. It did not necessarily limit the purposes for which such forests, once 61/ Authority to manage the national forests was transferred to the Department of Agriculture by the Forest Reserve Transfer Act of 1905, 16 U.S.C. §472 (1970). 62/ See Note, The Multiple Use-Sustained Yield Act of 1960, 41 Ore. L. Rev. 49, 57 (1961). 63/ Act of June 4, 1897, ch. 2, 30 Stat. 34, (current version at established, could be managed. Nor did it amplify the meaning of the directive to "protect the forest," which could arguably have referred to more than just the trees.64/ But whatever the justification, it is clear that the Forest Service, almost from the outset, managed the forests for a number of uses in addition to the three specified in the Organic Act. The Agriculture Appropriation Act of 1907, for example, included money for the care of fish stocks in waters of the national forests.65/ Other uses, such as grazing and general recreation, became well established in the early decades of Forest Service management.66/ Thus, without any express statutory authority, the Forest Service began what was in effect a policy of "multiple use" of the national forests, permitting as many varied uses of the forests as were compatible with the three statutorily expressed purposes. Within this framework of discretionary multiple use, the management of wildlife soon became a controversial issue, not so much because of its conflict with the statutory purposes of timber, water flow and forest protection, but because of jurisdictional disputes between the federal government and the states over their respective authorities within the national forests. That dispute, described at greater length in Chapter Two, resulted in a 1928 decision of the Supreme Court, 641 In 1901, the Attorney General apparently took the view that 589, 593 (1901). But see note 84 infra. 66/ See Note, The Multiple Use-Sustained Yield Act of 1960, 41 Hunt v. United States, upholding the power of the Secretary of Agriculture to order the removal of deer threatening harm to Kaibab National Forest through overbrowsing.67/ Six years later, buoyed by the Hunt decision, the Forest Service issued a regulation by which it took upon itself the authority to establish "hunting and fishing seasons fix bag and creel limits, specify sex of animals to be killed, [and] fix the fees to be paid" for hunting and fishing in designated national forests.68/ In the same month, Congress enacted a law which authorized the President to establish within national forests "fish and game sanctuaries or refuges . . devoted to the increase of game birds, game animals, and fish of all kinds naturally adapted thereto."69/ Within such sanctuaries, all "hunting, pursuing, poisoning, angling for, killing, or capturing by trapping, netting, or any other means" was prohibited, 70/ except for "predatory animals . . . . destructive to livestock or wild life or agriculture."71/ Most importantly, although such sanctuaries were to remain as parts of the national forests, other uses could be made of them, but only "so far as such uses may be consistent with the purposes for which such fish and game sanctuaries or refuges are authorized to be established."72/ 67/ 68/ 278 U.S. 96 (1928). 69/ 70/ Regulation G-20-A, 1 Fed. Reg. 1259, 1266 (Aug. 15, 1936) 16 U.S.C. $694 (1970). In 1916, Congress had passed a law 16 U.S.C. $694a (1970). 71/ Id. $694b. 72/ Id. $694. |