Andy Kerr

Conservationist, Writer, Analyst, Operative, Agitator, Strategist, Tactitian, Schmoozer, Raconteur

The National Wildlife Refuge System, Part 2: Historical Evolution and Current Challenges

Our beloved National Wildlife Refuge System arose with little systematic thought. From President Theodore Roosevelt’s proclamations of the first “national bird reservations,” many areas have been established under a multitude of names (wildlife refuges, wildlife ranges, game ranges, wildlife management areas, waterfowl production areas, and more). What they all have in common is that their primary purpose is the conservation of native animals.

As just one example, officially the Hart Mountain National Antelope Refuge in southeast Oregon is a unit of the National Wildlife Refuge System (NWRS), but it is only a national wildlife refuge in a lower-case sense. It’s not named the Hart Mountain National Wildlife Refuge. (Scientifically speaking, it should have been call the Hart Mountain National Pronghorn Refuge, as true antelope are found only in the Old World.)

  Pronghorn ( Antilocapra americana ) on the Arapaho National Wildlife Refuge in Colorado.  Source: US Fish and Wildlife Service

Pronghorn (Antilocapra americana) on the Arapaho National Wildlife Refuge in Colorado. Source: US Fish and Wildlife Service

The different names are often the result of the use of different authorities by which the NWRS units were established. Presidents have sometimes used proclamations and other times executive orders, while secretaries of the interior have used secretarial orders, public land orders, wildlife orders, and other forms and actions (sometime delegated to subordinates). National Wildlife Refuges (NWRs) have also been established by Congress; though few in number, these are large in acreage. “Executive and administrative documents establishing wildlife refuges outnumber [congressional] statutes by almost six to one,” noted Robert L. Fischman in his comprehensive law review article entitled “The National Wildlife Refuge System and the Hallmarks of Modern Organic Legislation” that appeared in Ecology Law Quarterly.

The purposes and boundaries of Oregon’s Malheur National Wildlife Refuge can only be divined by examining at least a dozen acts of Congress, presidential actions, and administrative decisions.

If you want to go deep into the history, policy, and law pertaining to the NWRS, Fischman’s article, for which I am very grateful, should be your first source, as it was mine. (Warning: 167 pages and 887 footnotes.) Among many other valuable contributions, Fischman provides a taxonomy of the NWRS in the article.

Over the decades, the main role of Congress pertaining to the NWRS has been to statutorily authorize policy and management actions first put into place by administrative action long before Congress conferred statutory blessing. In general, presidents and interior secretaries acted—sometimes citing congressional authority, sometimes not—and many years later Congress ratified as it codified. This includes even the establishment of the U.S. Fish and Wildlife Service (FWS), the agency of the Department of the Interior that administers the NWRS; the FWS was administratively created sixteen years before Congress statutorily authorized it.

Congressional statutes that have been used as authority both to establish wildlife refuges and to manage them include the Migratory Bird Treaty Act of 1918, the Migratory Bird Conservation Act of 1929, the Migratory Bird Hunting Stamp Act of 1934, the Refuge Recreation Act of 1962, the Refuge Administration Act of 1966, that Alaska National Interest Lands Conservation Act of 1980, and the National Wildlife Refuge System Improvement Act of 1997 (NWRSIA).

NWRSIA is generally considered to be the organic act for the NWRS. An organic act is a basic statute that establishes a mission, policy direction, and management standards for a system of public lands and/or the agency that administers them. Not until 1997—and only upon being prodded by President Clinton’s Executive Order 12966—did Congress bestow an organic act upon the NWRS. In contrast, the National Park System organic act was passed in 1916.

NWRSIA was enacted into law with strong bipartisan backing. Support was near unanimous (the only member of Congress or senator to vote against the legislation was then Representative (and later Libertarian presidential candidate) Ron Paul (R-TX). The bill sailed through because it was carefully negotiated to meet the needs of the hunting and nonhunting conservation communities.

The remainder of this post focuses on four matters: hunting, system purposes versus specific system unit purposes, compatible uses, and reform.

Hunting

There are three kinds of people in this world: hunters, nonhunters, and anti-hunters.

(For the record, I support responsible hunting—including not hunting certain species, in certain places, and in some manners—and used to hunt. I am of the view that if one is going to eat meat, one, at least occasionally, ought to be involved in some way in converting an animal to food.)

Some of my anti-hunting friends take exception to using the word refuge in the name of a national wildlife area that permits hunting. Undoubtedly what motivated presidents and secretaries of the interior to establish the first “refuges” was a desire to stop hunting that was driving species populations to extirpation, if not species to extinction. The Migratory Bird Conservation Act of 1929 authorized the establishment of areas “for use as an inviolate sanctuary, or for any other management purpose, for migratory birds.” “[F]or any other management purpose” might be read as negating “inviolate sanctuary,” but it actually is congressional authority to be concerned about habitat destruction for those migratory birds.

Some of my hunting friends point out that hunters have been some of the most powerful supporters of the NWRS. A major source of revenue to purchase millions of acres in the NWRS has been duck stamps, authorized by the Migratory Bird Hunting Stamp Act of 1934. Any hunter of waterfowl must be in possession of a current “duck stamp.” Nonhunters also collect the quite beautiful stamps, as did the presidential philatelist Franklin Delano Roosevelt, who signed the bill into law.

In subsequent statutes, Congress provided for more hunting on NWRS lands. However, such must be “compatible” (see below) with the purposes of the NWRS and the specific NWRS unit.

In the last days of the Obama administration, the director of the Fish and Wildlife Service issued an order banning the use of lead ammunition in any units of the NWRS (as should have been done in the first days of the Obama era) beginning in 2022. On his first day in office, Trump’s Secretary of the Interior Ryan Zinke revoked the order.

Hunters are just on the wrong side of the science, morality, and history of lead. Lead is toxic. Lead ammunition is a problem in the NWRS and everywhere guns are used for hunting. We long ago removed it from our gasoline and our paint—and our children’s (and our) IQs are the higher for it.

System Purposes Versus Specific System Unit Purposes

In the NWRSIA, Congress, in its wisdom (which often comes down to politics and precedent) both prescribed new purposes for the NWRS as a whole and also honored the specific purposes for which each NWR was originally established or expanded. Fischman noted, “It is important to remember that refuges have two sets of purposes: the comprehensive purposes of the National Wildlife Refuge System, and the specific purposes for which individual refuges were established. Almost all legislative history acknowledges the dual nature of the System mission.”

Fischman notes that the mission of the NWRS is conservation. Interestingly, NWRSIA defines conservation and management as interchangeable:

The terms “conserving”, “conservation”, “manage”, “managing”, and “management”, mean to sustain and, where appropriate, restore and enhance, healthy populations of fish, wildlife, and plants utilizing, in accordance with applicable Federal and State laws, methods and procedures associated with modern scientific resource programs. Such methods and procedures include, consistent with the provisions of this Act, protection, research, census, law enforcement, habitat management, propagation, live trapping and transplantation, and regulated taking.

For any specific refuge, the purposes may have been prescribed by Congress, the president, and/or the secretary of the interior (or subordinates). Some NWRS units were established solely to produce waterfowl (“duck factories”). The FWS manages these refuges to maximize ducks without regard to any NWRS system purposes. In reviewing or trying to influence management (pronounced  “conservation” and vice versa) by FWS staff, one must have a command of the specific establishment purposes.

Compatibility

The NWRSIA established a hierarchy of uses for NWRS units. Fischman very helpfully constructed a table (Figure 1) that boils down what is a rather complex amount of law, policy, and practice.

Where it is compatible with primary uses, does not conflict with secondary uses, and contributes to attaining a primary use.

The primary uses of a unit of the NWRS are both the individual refuge purposes and the NWRS-wide mandate of conservation. If in conflict, the former trumps the latter.

Secondary uses are NWRSIA-defined “wildlife dependent recreation” uses, which, if in conflict, trump other recreational uses (tertiary uses).

Quaternary uses are economic activities that either

• are a by-product of refuge management (such as mowing the grass at just the right time to maximize duck production, trapping predators of ducks, thinning understory fir trees encroaching on old-growth ponderosa pine bald eagle nesting trees); or

• can done without violating primary uses, don’t conflict with secondary uses, and contribute toward a primary use (a hard bar to clear, I would say).

Compatibility is determined in the comprehensive management plan required for each NWRS unit.

Reform

Though it is in my general nature to want to reform things, at this time I propose no changes to the body of statutes pertaining to the NWRS. First, the politics are not right, in either the legislative or executive branch. Second, the need for policy reform is not great, in that the law is generally workable now, especially with the occasional help of the judicial branch.

Rather I propose in the next and last of this three-part series on the National Wildlife Refuge System to double the size of it for the benefit of fish, wildlife, plants, ecosystems, watersheds, the climate, the economy, all, as called for in the National Wildlife Refuge System Improvement Act of 1997, “for the benefit of present and future generations of Americans.”

[Part 1 of this series is an overview of the National Wildlife Refuge System. Part 3 calls for the National Wildlife Refuge System to be doubled in size.]