Environmental law expert Lowell E. Baier reveals how over centuries the federal government slowly preempted the states’ authority over managing their resident wildlife. In doing so, he educates elected officials, wildlife students, and environmentalists in the precedents that led to the current state of wildlife management, and how a constructive environment can be fostered at all levels of government to improve our nation’s wildlife and biodiversity.

Environmental law expert Lowell E. Baier reveals how over centuries the federal government slowly preempted the states’ authority over managing their resident wildlife. In doing so, he educates elected officials, wildlife students, and environmentalists in the precedents that led to the current state of wildlife management, and how a constructive environment can be fostered at all levels of government to improve our nation’s wildlife and biodiversity.

List of Illustrations xi

Guide to Acronyms, Constitutional Provisions, and Terms xiii

Foreword xvii

Preface xxi

1 From the Mayflower Compact to the US Constitution, 1620–1789 1

2 Defining the New Government and the Separation of Powers, 1789–1835 10

3 Westward Expansion, the First Industrial Revolution, Dual Sovereignty, and the Public Trust Doctrine, 1835–1861 16

4 The Civil War, Reconstruction, the Advent of the Second Industrial Revolution, the Enduring Public Trust Doctrine, and State Ownership of Wildlife, 1861–1896 24

5 America’s Changing Culture: Market Hunting, the Lacey Act, the Migratory Bird Treaty Act, and the Beginning of the Progressive Era, 1896–1910 32

6 The Ethos of the Industrial Revolution Drives the Progressive Movement into America’s Social Fabric and Laws, 1910–1919 42

7 Prohibition and Reform: The Emergence of the Administrative State, 1919–1933 55

8 The Great Depression, FDR’s New Deal, and a “New” Supreme Court Overwhelms States’ Rights, 1933–1941 65

9 The Competing Ideologies that Characterized the Progressive Movement and Beyond, 1890–1940 72

10 The Stone Court and the Development of the Presumption against Preemption in Rice, 1941–1946 84

11 The End of the State Wildlife Ownership Doctrine following World War II, 1946–1969 88

12 The Burger Court: State Ownership of Wildlife Declared a Legal Fiction and Anachronism, 1969–1986 98

13 The Rehnquist Court: A Continued Swing toward Conservative Federalism and Preemption, 1986–2005 118

14 The Roberts Court and the Development of Area-Specific Jurisprudence, 2005–2022 139

15 The Future of Federal Preemption of State Authority over Wildlife and the Presumption against Preemption Doctrine in Wildlife Cases 147

16 State and Federal Cooperation and Coordination of the Endangered Species Act: Past and Present 158

17 The Three Biggest Threats Undermining Federalism and State Wildlife-Management Authority 165

18 Funding Endangered-Species Conservation: The Achilles Heel 173

Acknowledgments 185

Appendix 1: Federal Environmental and Consumer-Protection Statutes and Agencies Established during the 1960’s and 1970’s Green Revolution 189

Appendix 2: Graphs of Preemption Statutes and US Supreme Court Cases 193

Notes 197

Bibliography 261

Index 287

About the Author 000