AES LIBRAD LIBRAT We are very pleased for both of you gentlemen to come out here and be with us today. We have had some fine discussions on this matter, and we are pleased that you could be with us today again to amplify the record further. Mr. Pautzke also appeared in the previous hearings, and he is the man directly responsible under the Secretary for the management of fish and wildlife insofar as the jurisdiction of the Department of the Interior pertains. I have known Mr. Pautzke for a long time, and I am most pleased that he could be here along with Mr. Finnegan. STATEMENT OF CLARENCE F. PAUTZKE, ASSISTANT SECRETARY RA. LIBRA Mr. PAUTZKE. Thank you, Mr. Chairman. I have a statement which I would like to have placed in the record, but I would like to substantiate a few parts of that, if I may, with your permission. AESS Senator Moss. That may be done. That will be a good way to do it. We will put the full statement into the record and then you emphasize or amplify any parts of it that you like. CONGRES (The prepared statement of Mr. Pautzke is as follows:) STATEMENT OF CLARENCE F. PAUTZKE, ASSISTANT SECRETARY FOR FISH AND WILDLIFE AND PARKS Mr. Chairman and members of the committee, the two bills before you today, S. 2951 and S. 3212, relate to the control and mangement of fish and resident wildlife on Federal and non-Federal lands. In 1964, this Department issued an opinion which took the view that the Secretary of the Interior had authority to regulate public hunting and fishing of fish and resident wildlife on federally owned lands within the National Wildlife Refuge System. The opinion did not apply to any other Federal lands or to non-Federal lands. The International Association of Game, Fish, and Conservation Commissioners disagreed with that opinion. They contended that the States have the sole authority to regulate hunting and fishing of fish and resident wildlife in any area, including Federal areas other than those where exclusive legislative jurisdiction has been ceded to, and accepted by, the United States, within their territorial boundaries. That in a nutshell is the basis of the State-Federal controversy. It is the reason for the introduction of these two bills. Since the introduction of these bills, another element has been added in the spirit of cooperation that often punctuates State-Federal relationships in the field of wildlife management. Last June, Secretary Udall announced the adoption of a new fish and wildlife policy statement for the National Wildlife Refuge System, the National Park Service, and areas administered by the Bureaus of Land Management and Reclamation. It is Interior's blueprint for fish and wildlife management programs on lands administered by Interior. "A. In all areas administered by the Secretary of the Interior through the National Park Service, the Bureau of Sport Fisheries and Wildlife, the Bureau of Land Management, and the Bureau of Reclamation, except the National Parks, the National Monuments, and historic areas of the National Park Systems, the Secretary shall It provides "1. Provide that public hunting of resident wildlife and fishing shall be permitted within statutory limitations in a manner that is compatible with, and not in conflict with, the primary objectives as declared by the Congress for which such areas are reserved or acquired; "2. Provide that public hunting, fishing, and possession of fish and resident wildlife shall be in accordance with applicable State laws and HE regulations, unless the Secretary finds, after consultation with appropriate State fish and game departments, that he must close such areas to such hunting and fishing or restrict public access thereto for such purposes; "3. Provide that a State license or permit, as provided by State law, shall be required for the public hunting, fishing, and possession of fish and resident wildlife on such areas; "4. Provide for consultation with the appropriate State fish and game department in the development of cooperative management plans for limiting over-abundant or harmful populations of fish and resident wildlife thereon, including the disposition of the carcasses thereof, and, except in emergency situations, secure the State's concurrence in such plans; and "5. Provide for consultation with the appropriate State fish and game department in carrying out research programs involving the taking of fish and resident wildlife, including the disposition of the carcasses thereof, and secure the State's concurrence in such programs. 'B. In the case of the National Parks, National Monuments, and historic eas of the National Park System, the Secretary shall "1. Provide, where public fishing is permitted, that such fishing shall be carried out in accordance with applicable State laws and regulations, unless exclusive legislative jurisdiction1 has been ceded for such area, and a State license or permit shall be required for such fishing, unless otherwise provided by law; Republics respecting nature protection and wildlife preservation in the Western Hemisphere, and the Great Lakes Fisheries Convention, or the obligations of the United States under treaties and statutes to Indians both on and off reservations. For example, both bills attempt to vest title to all wildlife in the States within whose boundaries such wildlife are found. This is a meaningless gesture. No one in the Federal Government contends that the United States owns any wildlife. The very term implies that these animals are "wild" and the courts have long ago held that no one, not even the sovereign, can claim ownership in wildlife until they are reduced to possession. Obviously, if the United States does not own the wildlife, then Congress cannot convey what is not owned by the Government. We do not want to imply that Congress should not legislate in this area. On the contrary, we believe that as specific problems regarding fish and wildlife arise Congress may, as has been the case in the past, have to legislate to solve these problems. But Congress should not try to do this, as we have said, with one broad sweep, because such legislation could lead to more problems of even greater magnitude. Really, we are at a loss to understand the States' position. As we see it, the basic point at issue is not the narrow legal question of "ownership" of wildlife, but whether Interior activities designed to protect and conserve federally owned land and the wildlife resources of those lands shall be subject to State review, control, and regulation. We have never suggested or maintained that a private landowner has title to wildlife resident on his lands. On the contrary, the law is quite clear that the State has the power and duty to manage and regulate hunting activities. We do believe, however, that the United States, as a sovereign power, is not subject to State regulation and control in the performance of congressional authorized activities. We urge that this Committee put aside this legislation and give the Secretary's policy statement a chance to work. We believe it will be effective and will resolve this issue. We are convinced that this approach will better serve this Nation's conservation movement which relies heavily on the fact that both the States and Federal Government have considerable responsibilities in the field of fish and wildlife management. In order to carry out these responsibilities effectively, both must look to the other for assistance. Neither can do the whole job alone. They must work together both at the highest and lowest levels. It is for these reasons, that we believe that legislation which attempted to establish the rights and prerogatives of both over a resource which does no recognize either State or Federal property boundaries should not be enacted. Mr. Chairman, we believe that, despite the urgings of the States, the Congress should not enact legislation such as these two bills. They are defective in many ways and, as we promised last summer, we will file with your Committee a detailed analysis to point out these defects and to indicate the problems they will create. In summary, we strongly recommend against the enactment of such legislation. We are advised that the Bureau of the Budget concurs in this recommendation. Mr. PAUTZKE. Mr. Chairman and members of the committee: The two bills before you today, S. 2951 and S. 3212, relate to the control and management of fish and resident wildlife on Federal and nonFederal lands. In 1964, this Department issued an opinion which took the view that the Secretary of the Interior had authority to regulate public hunting and fishing of fish and resident wildlife on federally owned lands within the National Wildlife Refuge System. The opinion did not apply to any other Federal lands or to non-Federal lands. The International Association of Game, Fish, and Conservation Commissioners disagreed with that opinion. They contended that the States have the sole authority to regulate hunting and fishing of fish those where exclusive legislative jurisdiction has been ceded to, and and resident wildlife in any area, including Federal areas other than accepted by, the United States, within their territorial boundaries. That, in a nutshell, is the basis of the State-Federal controversy. It is the reason for the introduction of these two bills. do not want to imply that Congress should not legislate in this On the contrary, we believe that as specific problems regarding nd wildlife arise, Congress may, as has been the case in the past, o legislate to solve these problems. But Congress should not try this, as we have said, with one broad sweep, because such legislaould lead to more problems of even greater magnitude. lly, we are at a loss to understand the States' position. As we see basic point at issue is not the narrow legal question of ownerof wildlife, but whether Interior activities designed to protect conserve federally owned land and the wildlife resources of lands shall be subject to State review, control, and regulation. have never suggested or maintained that a private landowner has o wildlife resident on his lands. On the contrary, the law is quite that the State has the power and duty to manage and regulate ng activities. We do believe, however, that the United States, as a eign power, is not subject to State regulation and control in the vitio We urge that this committee put aside this legislation and give the Secretary's policy statement a chance to work. We believe it will be effective and will resolve this issue. We are convinced that this approach will better serve this Nation's conservation movement which relies heavily on the fact that both the States and the Federal Government have considerable responsibilities in the field of fish and wildlife management. In order to carry out these responsibilities effectively, both must look to the other for assistance. Neither can do the whole job alone. They must work together at the highest and lowest levels. It is for these reasons that we believe that legislation which attempted to establish the rights and prerogatives of both over a resource which does not recognize either State or Federal property boundaries should not be enacted. Mr. Chairman, we believe that, despite the urgings of the States, the Congress should not enact legislation such as these two bills. They are defective in many ways, and, as we promised last summer, we will file with your committee a detailed analysis to point out these defects and to indicate the problems they will create. In summary, we strongly recommend against the enactment of such legislation. We are advised that the Bureau of the Budget concurs in this recommendation. Thank you very much, Mr. Chairman. Senator Moss. Thank you, Mr. Pautzke. The decision is essentially the same as it was when you appeared before us in Washington. And, of course, as far as the legal terminology, I suppose, that really there isn't ownership in wildlife. When I went to law school, they called that ferae naturae, and that belongs to no one until it has been reduced to possession and then it becomes personal property. So what we are talking about is, Who has the right to regulate the taking into possession of ferae naturae, and under what conditions this would be done? Perhaps the language does need some more refining. The problem, though, is a real one, because of the one or two conflicts that have arisen. Our recreation areas in this State are as good an example as any. The legislation that established the Flaming Gorge Recreation Area provided that fishing and hunting may be done in that area in conformance with State law, and that the Secretary in his management of the area, the Secretary of Agriculture in this case, might restrict hunting and fishing in given areas for reasons of safety or administrative management of the lands. Now, it seemed to me that that was a perfectly clear and desirable statement as to how we would proceed on fishing and hunting in the area. Because there was objection to that, and the bill was held up for about 9 months, by reason of objections, we finally added a sentence saying that nothing in this legislation disturbs the States' jurisdiction of either Wyoming or Utah to manage its fish and wildlife, which was just a gratuitous addition that didn't really add anything to the legislation. But I assume that Interior concurs in that, because they testified for the legislation and raised no objections to that kind of language. Now, how do you fear that if we made a policy statement that we tried to tailor to the same results we would get in difficulties that would make impossible or difficult the management of fish and wildlife on Federal areas? |