David M. Walsh*
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The Supreme Court’s 1920 decision in Missouri v. Holland1* B.A., Florida State University; J.D. candidate, Harvard Law School. This essay began as a seminar paper for Mr. Eric Glitzenstein’s Wildlife Law seminar at Harvard Law School. I am indebted to Mr. Glitzenstein and the seminar participants for their insight and inspiration, and to Professor Molly Brady for bringing Land Use Law back to Harvard.
252 U.S. 416 (1920). set wildlife law on a trajectory it follows to this day. In upholding the Migratory Bird Treaty Act against a Tenth Amendment challenge, Justice Holmes wrote that migratory birds “can be protected only by national action.”2Id. at 435 (emphasis added). And intuitively, that makes sense: wild animals aren’t known to observe sovereign boundaries, so the laws designed to protect them should be uniform from state to state. Congress certainly agreed. Throughout the twentieth century, it passed sweeping, aggressive statutes designed to protect the nation’s besieged wildlife.3See, e.g., Lacey Act of 1900, 16 U.S.C. § 3371 et seq.; Bald and Golden Eagle Protection Act of 1940, 16 U.S.C. § 668 et seq.; Marine Mammal Protection Act of 1972, 16 U.S.C. § 1531 et seq.; Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. The Supreme Court called the Endangered Species Act “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978). As a result, in scholarship and law school classrooms, wildlife law is regarded principally as a body of federal law.4See, e.g., Katrina M. Wyman & Danielle Spiegel-Feld, The Urban Environmental Renaissance, 108 CAL. L. REV. 305, 306 (2020) (“[S]cholars have primarily equated environmental law in the United States with federal environmental statutes and regulations.”); John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 26 HARV. ENVTL. L. REV. 365, 375 (2002) (“Conceptually, the role of local government is seen as that of an incidental participant in a federal system of environmental law.”).
This essay argues that view is shortsighted, as there is a gap in the scope of federal regulatory authority. Land use authority over non-federal lands, which is vested in local governments, shapes the natural landscape in ways federal law cannot. Through zoning, permitting, and master plans, local governments regulate the spatial and functional aspects of human development.5See infra Part II. The federal government, for its part, is constitutionally barred from exercising significant land use authority over land it does not own6See infra Part I. —in other words, about two-thirds of land in the United States.7Federal Land Ownership: Overview and Data, Cong. Res. Serv. Rep. R42346 (2020), available at https://sgp.fas.org/crs/misc/R42346.pdf. To be clear, my claim is not that the federal government’s role is unimportant for wildlife conservation. It is crucial. But any consideration of wildlife law as a distinct body of law must account for the land use authority vested in local governments. To do otherwise ignores both the threats and possibilities that local land use decisions present to wildlife conservation efforts.
It bears noting that state law plays an important role as well. In practice, states administer conservation programs and have passed sweeping laws to protect wildlife.8For a brief overview of the role of state government in wildlife law, see generally Temple Stoellinger et. al., Improving Cooperative State and Federal Species Conservation Efforts, 20 WYO. L. REV. 183, 186-91 (2020). Conceptually, though, state wildlife laws work similarly to or in cooperation with the federal ones.9Id. And while state law often guides the land use process, final authority over land use decisions rests with local governments.10See ROBERT C. ELLICKSON ET. AL., LAND USE CONTROLS: CASES AND MATERIALS 45-50 (4th ed. 2013); Hess v. Port Auth. Trans–Hudson Corp., 513 U.S. 30, 44 (1994) (“[R]egulation of land use [is] a function traditionally performed by local governments”). State wildlife law thus does not fill a regulatory “gap” in the same sense as local governments’ land use authority.
This essay proceeds in three parts. Part I outlines the constitutional boundaries of federal wildlife law, identifying the positive grants of authority Congress has made good use of, as well as the federal government’s limitations. Part II turns to local governments, arguing that local land use authority is crucial for wildlife conservation. It briefly explains land use law, then describes its application to wildlife conservation with examples. Part III concludes with a discussion of why a broader conception of wildlife law—one that accounts for the local land use authority—matters from a wildlife conservation perspective.
I. Federal Wildlife Law: Constitutional Scope and Limits
Most federal wildlife law derives from one of three positive sources of constitutional authority. Under its Property Clause powers,11U.S. CONST. art. IV, § 3, cl. 2; Kleppe v. New Mexico, 426 U.S. 529 (Property Clause gives Congress broad power to regulate federal lands). the federal government may regulate use of land it actually owns.12See Kleppe, 426 U.S. at 539 (1976). Lower courts have also upheld federal authority to regulate the use of land abutting federally owned land to the extent necessary to protect federal interests. See United States v. Lindsey, 595 F.2d 5, 6 (9th Cir. 1979) (Property Clause allows federal government to regulate non-federal lands “when reasonably necessary to protect adjacent federal property or navigable waters.”); Minnesota v. Block, 660 F.2d 1240, 1249-51 (8th Cir. 1981); High Point v. Nat’l Park Serv., 850 F.3d 1185, 1199 (11th Cir. 2017). Congress has explicitly directed the federal government to acquire and regulate federally owned land for the benefit of wildlife.13Land and Water Conservation Fund Act of 1965, 16 U.S.C. § 663(c). See also Section 5 of the Endangered Species Act, which requires certain agencies to acquire land for conservation as required by the Fish and Wildlife Act and the Migratory Bird Conservation Act. Id. § 1534(a). The Land and Water Conservation Fund Act, for instance, directs federal agencies to acquire land for “wildlife conservation and development purposes.”14Land and Water Conservation Fund Act of 1965, 16 U.S.C. § 663(c). Under its Commerce Clause powers,15U.S. CONST. art. I, § 8, cl. 3; Hughes v. Oklahoma, 441 U.S. 322 (1979) (Commerce Clause gives federal law supremacy over conflicting state law that discriminates against interstate commerce). Congress has curbed market incentives for hunters and poachers by limiting or outlawing the interstate “take” or transport of certain wildlife. The Lacey Act of 1900 was the first such law, forbidding transport in interstate commerce of wild animals taken in violation of state law.1616 U.S.C. § 3372(a). Later invocations of the Commerce Clause power include Section 9 of the Endangered Species Act, which forbids the “transport,” “deliver[y],” and “ship[ment]” of designated species,17Id. § 1538(a). and the Marine Mammal Protection Act, which prohibits the take or transport of marine mammals.18Id. § 1372(a). Under its general Article I lawmaking authority,19U.S. CONST. art. I, § 1. Congress requires that federal agencies consider the impacts of federal action on wildlife and the environment more broadly. Most notably, the National Environmental Policy Act requires agencies to consider the environmental impacts of any action they engage in or license.2042 U.S.C. § 4332. Section 7 of the Endangered Species Act requires federal agencies to consult with the Interior Secretary to ensure their actions—including the issuance of permits for private action—do not threaten any listed species or designated critical habitat.2116 U.S.C. § 1536(a).
While broad, the federal government’s authority to protect wildlife has one glaring limitation: land use regulation over non-federal land. In a series of decisions known as the “new federalism” cases, the Supreme Court in the 1990s restricted the federal government’s power to regulate matters that traditionally belonged to the states. Principal among those is the regulation of land use.22See, e.g., Michael C. Pollack, Land Use Federalism’s False Choice, 68 ALA. L. REV. 707, 707 (2017) (“[F]ew areas of law and policy are considered more quintessentially local than land use.”); Marci A. Hamilton, The Constitutional Limitations on Congress’s Power over Local Land Use: Why the Religious Land Use and Institutionalized Persons Act Is Unconstitutional, 2 ALB. GOV’T L. REV. 366, 390-91 nn. 90-92 (2009) (compiling cases). In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers,23531 U.S. 159 (2001). the Court suggested there were hard limits on federal land use authority. It held that the Clean Water Act did not authorize the Army Corps of Engineers to regulate waters entirely within the state of Illinois that migratory birds inhabited.24Id. at 173. Without ruling on the Tenth Amendment issue, the Court made its position clear: the Constitution gave the federal government no role at the site. The Court recounted the litany of state and local permits that were already required,25Id. at 165 (“By 1993, SWANCC had received a special use planned development permit from the Cook County Board of Appeals, a landfill development permit from the Illinois Environmental Protection Agency, and approval from the Illinois Department of Conservation.”). and expressed skepticism at the stringency of the Army Corps’ additional requirements.26Id. Allowing the federal government to require permits, the Court concluded, would constitute “a significant impingement of the States’ traditional and primary power over land and water use.”27Id. at 174. Decisions like Cook County and the subsequent Rapanos v. United States28547 U.S. 715 (2006). In Rapanos, a plurality of the Court sought to further narrow the scope of the term “navigable waters,” but failed to secure a fifth vote. Writing for the plurality, Justice Scalia chided the Army Corps for attempting to exercise land use authority “that would befit a local zoning board.” Id. at 738. suggest that, as a constitutional matter, the federal government has little role in regulating the use of land it does not own.29See generally ROBERT C. ELLICKSON ET. AL., LAND USE CONTROLS: CASES AND MATERIALS 45-50 (4th ed. 2013).
Congress, never one to go down gently, retains some attenuated influence on local land use decisions. While it cannot overtly regulate land use on non-federal land, Congress shapes local land use policy with two tools: incentives and permit requirements.30For an insightful account of Congress’s options to shape local land use policy, see generally Michael C. Pollack, Land Use Federalism’s False Choice, 68 ALA. L. REV. 707, 723-36 (2017). First, federal statutes provide grant money to state and local governments for complying with certain conservation mandates. A notable example is the Coastal Zone Management Act.3116 U.S.C. § 1451 et seq. The CZMA aims to channel land use decisions to protect sensitive coastal zones, and contemplates “full participation” of affected local governments.32Id. § 1455(d)(1). It sets minimum federal standards for coastal zone protection that ensure long-term habitat conservation for affected wildlife.33Id. § 1455(d)(13)(B). Section 6 of the Endangered Species Act works similarly, offering federal funds to states that enter into cooperative agreements with the federal government to conserve endangered species.34Id. § 1535(d). Second, federal agencies can impose permitting requirements on landowners to the extent endangered species are affected. The Endangered Species Act requires developers to secure a permit where their activities might result in incidental take of a listed species.35Id. § 1539(a)(1). In order to do so, the developer must prepare a Habitat Conservation Plan (HCP) that sets out ways it will minimize its impact on the listed species.36Id. § 1539(a)(2).
II. Local Land Use Authority and Wildlife Conservation
Land use law is, in broad terms, the set of laws that shape the development and conservation of land.37See generally ROBERT C. ELLICKSON ET. AL., LAND USE CONTROLS: CASES AND MATERIALS 57–75 (4th ed. 2013). The vast majority of states have devolved land use power to the municipal level, either to incorporated municipalities or counties.38See, e.g., Florida’s Community Planning Act, FLA. STAT. § 163.3167 et seq.; Colorado’s Local Government Land Use Control Enabling Act, COLO. REV. STAT. § 24-65-101. Municipalities’ land use power gives them a measure of control over social, economic, and spatial aspects of human development. In general,39Generalizations in local government law are famously difficult, thanks in large part to their sheer quantity. The 2017 Census of Governments counted 38,779 general-purpose local governments in the United States—3,031 counties, 19,495 municipalities, and 16,253 townships. 2017 Census of Governments – Organization, U.S. CENSUS BUREAU, tbl. 3, https://www.census.gov/data/tables/2017/econ/gus/2017-governments.html. land use authority is exercised through three mechanisms: zoning, permitting, and master plans.
Zoning authority allows local governments to designate “districts” where particular land uses are allowed or forbidden. For instance, a local government might zone the district containing a major roadway for retail use, and a quieter district for residential use.40See Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926). Permitting authority arises when landowners request exceptions to zoning rules.41The process for creating exceptions takes different forms—most commonly variances, special exceptions, or rezonings—each with different legal implications. See ROBERT C. ELLICKSON ET. AL., LAND USE CONTROLS: CASES AND MATERIALS 60 (4th ed. 2013). As a condition for granting that exception—which comes in the form of a permit—local governments can impose requirements on developers, like funding municipal services that become necessary as a result of the development.42See Bethlehem Evangelical Lutheran Church v. City of Lakewood, 626 P.2d 668, 671 (Colo. 1981) (upholding municipal ordinance requiring developers to fund public improvements to the extent development necessitates them). Finally, most local governments are required to promulgate a “master” or “comprehensive” plan that guides the physical development of a region over time.43See, e.g., COLO. REV. STAT. § 30-28-106(1) (“It is the duty of a county planning commission to make and adopt a master plan for the physical development of the unincorporated territory of the county.”). Master plans are often only advisory, but nonetheless guide local land use decisions.44See ROBERT C. ELLICKSON ET. AL., LAND USE CONTROLS: CASES AND MATERIALS 74–75 (4th ed. 2013). They can also become legally binding under state or municipal law.45See, e.g., Beaver Meadows v. Board of County Comm’rs, 709 P.2d 928, 936 n.6 (Colo. 1985) (en banc) (“[A] master plan is only one source of comprehensive planning, and is generally held to be advisory only . . . . However, in this case, the general assembly, and Larimer County, have required” that the development proposal at issue “be in general conformity with the county’s master plan or comprehensive plan.”) [internal citations omitted].
Each of these mechanisms can be employed in the name of wildlife conservation.46A comprehensive survey of land use law as it relates to wildlife conservation is beyond the scope of this brief essay. For a thorough, recent survey of local environmental laws, see Katrina M. Wyman & Danielle Spiegel-Feld, The Urban Environmental Renaissance, 108 CAL. L. REV. 305, 364–77 (2020). Professor Nolon’s early, influential study of land use law for environmental protection is a similarly valuable resource. John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental Law, 26 HARV. ENVTL. L. REV. 365, 372–410 (2002). Most fundamentally, municipalities can zone undeveloped land to protect wildlife habitats. Municipalities in Ohio, for instance, have zoned for “open space and conservation,” which forbids all development.47See Reed v. Rootstown Township Board of Zoning Appeals, 458 N.E.2d 840, 841 (Ohio 1984). Similarly, local governments in New York can designate districts for “scenic resource protection.”48See SOMERS, N.Y. CODE § 138-5. Permitting requirements also give municipalities power to force developers to comply with conservation standards. In Colorado, municipalities can require developers to submit wildlife impact statements and modify site or subdivision plans based on their impact on wildlife.49COLO. REV. STAT. § 29-20-102. In many Florida municipalities, developers building on beachfront are required to limit their use of bright lights to avoid interfering with seasonal sea turtle nesting.50See MONROE COUNTY, FLA., CODE OF ORDINANCES § 12-114 et seq. (1979); MIAMI BEACH, FLA., CODE OF ORDINANCES § 46-201 et seq. (2006). Municipalities can also crystallize long-term protections for wildlife through their master plans. A master plan can steer human activity away from wildlife, or prevent development from circling important habitats such that they are fragmented, cutting wildlife off from important resources.51See generally ENV’T. LAW INST., CONSERVATION THRESHOLDS FOR LAND USE PLANNERS (2003). In Florida, state law requires that local governments’ master plans provide for the conservation of “wildlife [and] marine habitat.”52FLA. STAT. § 163.3177(6)(d).
All exercises of land use power will at some point impact wildlife. If local governments recognize their crucial role as part of the broader wildlife law regime, there is a chance that responsibility will shape the way they regulate land use. The discussion above shows that some municipalities have taken a leading role in wildlife conservation. On the other hand, reckless application of land use can have disastrous effects for wildlife. A local government that plans only for economic growth risks imperiling affected wildlife because land use decisions tend to ossify. Once undeveloped land is privately owned, the power to regulate it is curtailed by constitutional property protections.53See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1032 (1992) (Fifth Amendment Takings Clause forbids state conservation law that deprives landowner of “all economically beneficial uses” of land). While human development is inevitable, responsible exercise of the local land use power can attenuate the impact of development on wildlife.
Wildlife law in the United States is best understood as having four key sources: the federal government’s Commerce Clause, Property Clause, and Article I lawmaking powers, and—I argue—local governments’ land use power. The federal government sets national standards for wildlife conservation under its three direct grants of authority, and indirectly influences land use decisions on non-federal land. Nonetheless, land use authority over the nearly two thirds of non-federal land in the United States rests in the hands of local governments.54Federal Land Ownership: Overview and Data, Cong. Res. Serv. Rep. R42346 (2020), available at https://sgp.fas.org/crs/misc/R42346.pdf. Through their land use authority, local governments can raise the bar for wildlife conservation by regulating the extent of development, protecting environmentally sensitive areas, licensing hunting, limiting pollution, and controlling population density, to name a just few.
As global wildlife populations dwindle,55See INTERGOVERNMENTAL SCIENCE-POLICY PLATFORM ON BIODIVERSITY AND ECOSYSTEM SERVICES, THE GLOBAL ASSESSMENT REPORT ON BIODIVERSITY AND ECOSYSTEM SERVICES: SUMMARY FOR POLICYMAKERS 22–33 (2019). advocates must consider every angle through which it can be protected. State legislation can impose positive obligations on municipalities to conserve wildlife in their exercise of land use power.56See, e.g., FLA. STAT. § 163.3177(6)(d). For instance, a state statute could require that the components of a comprehensive plan aimed at wildlife conservation be reviewed and approved by the relevant state wildlife agency, and thus become legally binding unless the state agency says otherwise. A similar move was upheld in a recent Florida case.57Cf. Nassau County v. Willis, 41 So. 3d 270, 278 (Fla. Dist. Ct. App. 2010), where a county was allowed to violate its comprehensive plan with respect to development on wetlands because the state Water Management District redesignated the plot in question. Separately, national land use literature, like the Growing Smart Legislative Guidebook, can and should encourage municipalities to plan with wildlife conservation—not just environmental protection—in mind.58AM. PLAN. ASS’N, GROWING SMART LEGISLATIVE GUIDEBOOK: MODEL STATUTES FOR PLANNING AND THE MANAGEMENT OF CHANGE (Stuart Meck ed., 2002). Moving forward, as the Supreme Court continues to curb the scope of federal regulatory authority,59See, e.g., West Virginia v. Environmental Protection Agency, 597 U.S. __ (2022). it is not clear that the federal wildlife statutes are immune from further limitation. To the extent the Endangered Species Act’s Habitat Conservation Plan provisions resemble traditional local land use power, they may be subject to a Tenth Amendment challenge on those grounds.60See Rapanos, 547 U.S. at 738 (suggesting federal permit requirements violated state sovereignty by operating in a manner “that would befit a local zoning board”). If the Court further limits the federal government’s power to conserve wildlife, it will fall to the local land use process to regulate for wildlife conservation.
Taking a broader view of wildlife law is not just important as a conceptual exercise. Land use decisions over non-federal land offer a prospective means of preserving wildlife, and if they are understood that way, both conservationists and local government leaders can work to tailor land use regulations to protect wildlife. That is not to say it will be easy. Like the federal government’s wildlife law statutes, local land use policy must balance competing interests. Nonetheless, situating local land use power within the broader wildlife law framework creates a clearer picture of wildlife law as a whole, imposing an obligation on local government leaders to acknowledge the impact of their decisions on wildlife, and orienting conservation advocates toward local—not just federal—solutions.