In United States wildlife management, there is a notion that the federal government manages land while states manage wildlife. While it is true that states have historically held authority over wildlife, federal agencies often also have the authority, and often an obligation, to manage and conserve wildlife. This overlapping jurisdiction has led to the frequent preemption of state wildlife laws and management tactics by federal statutes or objectives, eroding state authority in this area over the past century. In the 2020 election, Colorado voters passed Proposition 114, a state ballot initiative that requires Colorado Parks and Wildlife to reintroduce wolves to the state by the end of 2023 and to create a plan for the ongoing management of the species. While state ballot initiatives themselves are not new in wildlife management, Proposition 114 is the first of its kind to mandate that a state wildlife agency take such broad action regarding the management of a species. By undertaking this reintroduction effort with the direct support of the voters, Colorado will be in a unique position if its wolf management tactics conflict with federal authority. In other areas of law, courts have recognized that state ballot initiatives deserve a higher deference when analyzing conflict preemption. Operating much like a presumption against preemption, this heightened deference requires courts to adopt any reasonable interpretation of the conflicting federal law that would avoid preemption. With the prevalence of saving clauses in federal land and wildlife management statutes, finding such a reasonable interpretation is possible in nearly all wildlife management contexts. Should courts adopt this heightened deference standard, states may see the first ruling granting them new authority in the realm of wildlife management in a century. This article explores how state ballot initiatives present the possibility for states to reclaim some authority over wildlife that has been slowly eroded by the courts. While Proposition 114 may not ultimately run afoul of any federal authority, this article explores how state ballot initiatives present a new tool that states can use to reclaim the authority over wildlife that has been slowly eroded by the courts.
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State Ballot Initiatives and Federal Preemption: How Colorado Voters Have Changed Cooperative Federalism in Wildlife Management,
Nat. Resources J.
Available at: https://digitalrepository.unm.edu/nrj/vol62/iss1/3