Brett Roper column mug

Brett Roper

Two hundred and forty-two years and one day ago our founding fathers declared independence from England. The signing of the Declaration of Independence signified a new type of government where citizens played a larger role in governing. Although this document had many implications on how future democracies would be formulated it also had ramifications on the future management of fish and wildlife.

The first concern involving fisheries management came seven years later when Great Britain signed a Paris Peace Treaty with the United States. An important aspect of this treaty was it granted the United States fishing rights in the Grand Banks which lies off the coast of Newfoundland. By including this point our new country was not only allowed to fish these productive waters but also to decide to whom we sold the catch.

Many practices formulated in Britain were adapted into our legal system. One important concept was that of navigability. One founding father, John Jay, stated in Federalist Paper No. 2 that “A succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the noblest rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities.” Streams were the young nation’s road systems, but this concept would eventually play an important role in protecting stream access for anglers.

Navigability was the rational in the recent ruling on the Weber River that provided the legal foundation for allowing anglers to wade parts of this river. That is because the state owns the land under navigable rivers which must be managed for the public trust. There are still arguments throughout the west about which rivers are navigable but those that are remain accessible to the public.

From a land management perspective the most important protections came in Article 4 Section 3 of the Constitution which states, “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”. Although initially intended to be a mechanism to dispose of public lands, this clause has allowed the United States to set aside lands for public use. The exact understanding of this clause can be confusing as Congress has passed bills, such as the Antiquities Act, that gives these rights to the president. What is clear is that without this clause, there would likely be little accessible public lands.

Additional protections are found in the Constitution’s Second Amendment that supports the right to bear arms. England has long limited who could own guns and hunt.

Because of the 2nd Amendment, most people in the US can purchase firearms. The right to hunt and fish, however, is not guaranteed by the Constitution. To address this, twenty-one states have added that right to their own constitutions. Idaho and Wyoming’s constitutions have such a clause although Utah does not. It should be noted that in each state where this issue has made it to the ballot, it has passed.

While the Constitution did not expressly mandate who oversaw the management of fish and wildlife, it has been argued it falls under the 10th Amendment of the Constitution which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This has resulted in fish and wildlife management, for the most part, being handled by the states. There are three exceptions to this, treaties with other countries, interstate commerce and the property clause listed above.

The combination of the treaty and commerce clause lead to the ability to protect migratory animals such as waterfowl at an international scale. These clauses also allow the federal governments to limit sales of wild fish and game across state lines – another mechanism that limits overharvest.

The exception to state control can be found in the management of fish and wildlife on federal land. In Kleppe v. New Mexico, the Supreme Court concluded federal government had broad discretion in the management of wild horses. Many states, including Utah, would like to see the number of these animals on public land reduced but cannot do so because of federal involvement. We will likely see the exact extent of this federal right better defined over the next couple decades.

The Fourth of July is an important holiday to all that value freedom. While freedom was the most important outcome of the Declaration of Independence, it did also set the stage for most of this country’s citizens being able to hunt and fish.

{span style=”font-family: tahoma,arial,helvetica,sans-serif;”}{span style=”font-size: 12px;”}Brett Roper is a fisheries biologist for the Forest Service. When not working or with his family you are likely to run into him anywhere — as long as it is outdoors. He can be contacted at roperguth@gmail.com.{/span}{/span}

Brett Roper is a fisheries biologist for the Forest Service. When not working or with his family you are likely to run into him anywhere — as long as it is outdoors. He can be contacted at roperguth@gmail.com.