The Tenth Amendment and the wolves

"Just as California under President Bush asserted itself on issues ranging from gun control to medical marijuana, a motley cohort of states – from South Carolina to New Hampshire, from Washington State to Oklahoma – are presenting a foil for President Obama's national ambitions. And they're laying the groundwork for a political standoff over the 10th Amendment, which cedes all power not granted to Washington to the people."

The article goes on to give this example of a supposed state assertion of the Tenth Amendment:

"The Idaho House began considering Wednesday a law against introducing "vicious animals" into the state – a direct rebuttal of the federal wolf reintroduction program."

Full disclosure on two fronts. First, as a petting zoo keeper, I really like animals and want to do what's best for them. Second, in general I'm a proponent of the Tenth Amendment. That's why I think Roe v. Wade was a poor decision. You've got the states regulating abortion from the time the union was founded, and all along it's perceived as an area of family law subject to state law in the same way marriages and adoptions are, and then all of a sudden the Supreme Court decides that because of the Fourteenth Amendment's due process clause, federal authority over abortion is warranted. A much less nuanced reading of the Constitution leads, I believe, to the conclusion that in 1973 the Court should have left the matter of abortion where it was, with the states.

Having said that, don't you pro-lifers kid yourselves that if Roe had deferred to the states that most abortions these past thirty-six years would have been prevented. In the six years before Roe nineteen states passed laws making it easier for a woman to have an abortion; that trend likely would have continued. (See Elshtain, "Roe v. Wade: Speaking the Unspeakable," in George, ed. Great Cases in Constitutional Law, 2000, p. 178.)

But I want to talk about wildlife here, not abortions. Animals, unlike abortions, are popular; people wouldn't take their kids to the San Diego Zoo to see a fetus removal. And where the wolves are concerned, those legislators in Idaho may be howling up the wrong tree. It's all about the Constitution's Property Clause.

The Property Clause is found in Article IV, Section 3 of the Constitution; it declares:

"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

If you've read anything about the history of this country between 1850 and 1860, you know we basically had a Civil War because of two contrasting interpretations of this clause, with one side saying yes, since Kansas is a territory and not a state Congress can ban slavery there and the other side saying no, that's a strained interpretation. Abe Lincoln gave a famous campaign speech on this matter, but his eloquence did not convince everyone, and so the bullets flew.

With the ending of the War, plus the granting of statehood to all those western territories, the property clause no longer was applicable to quite as much land. Ah, but note I said not quite as much land. Because even today, over a century after statehood, a whole lot of land in some of those western states is federal property. You may say if you want that this means the U.S. government is the landlord; I prefer to think that this means we the people are the landlords.
In the specific case of Idaho, sixty-four percent of the land is in federal hands, almost two-thirds of the acreage. And if Congress authorizes federal agencies to reintroduce wolves to some of those lands where they are now rare or absent, well, they have the power to do that.

This was essentially the holding of Kleppe v. New Mexico, 426 U.S. 529 (1976), in which a unanimous Supreme Court upheld the Wild Horses and Burros Act against a claim by New Mexico that Congress had exceeded its authority. Although the burros at issue in the case were rounded up on federal land (Kleppe at 533-34) the Act protects mustangs and donkeys even if they stray off of federal land and onto private property (Kleppe at 531-32). In its opinion, the Court made it pretty clear that under the Property Clause the U.S. government can enact very stringent laws to protect wildlife on federal lands.

Admittedly, there is another issue where wolf reintroductions are concerned. For while a burro may compete with a rancher's livestock for food, a wolf might make the rancher's livestock food. Worse, from the rancher's point of view, when it comes to federally protected species, the courts have not observed the traditional common law right of a landowner to defend their property. Thus, in Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988) a fine of $2,500 on a rancher who shot a grizzly bear was upheld even though he'd lost twenty sheep in one week to the bears. The U.S. Supreme Court declined to hear Christy's appeal.

If you click on that link, even if you favor wolf reintroduction I think you'd have to conclude Justice White's dissent from the decision not to grant certiorari raises some relevant points. We as a society have concluded that wolf preservation is a lofty goal, but why should the ranchers alone bear the financial burden for any damage done by wolves? Fortunately, this is one of those cases where private citizens, rather than the government, have stepped in to ameliorate an unfavorable situation.

For over twenty years now, the Defenders of Wildlife have maintained the Wolf Compensation Program. Through this fund--consisting of private donations, not taxpayer dollars--the Defenders of Wildlife pay landowners the market value of any livestock killed by a wolf (Faigman, Legal Alchemy: The Use and Misuse of Science in the Law, 1999, p. 171--Faigman's several pages on Yellowstone wolf reintroduction provide a good, brief background on the topic).

In summary, to prevail in their fight against the feds, those politicians in Idaho will have to work to overturn Kleppe, a thirty-three year old, nine to nothing decision. As it now stands, there isn't much constitutional merit to Tenth Amendment arguments objecting to wolf reintroduction.