WILDLIFE LAW Course No. L , 3 Credits Room 499, Tuesdays and Thursdays 9AM 10:15AM Professor Jay Tutchton

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1 WILDLIFE LAW Course No. L , 3 Credits Room 499, Tuesdays and Thursdays 9AM 10:15AM Professor Jay Tutchton jtutchtontlo@gmail.com Text: Goble, Freyfogle, Biber, Cheever and Wiersema, Wildlife Law, Cases and Materials, Third Edition, Foundation Press (2017), ISBN # Note: Unusual Start to Semester: Due to overseas travel, I have to cancel the first five class periods of the semester. All classes through January 23 rd are cancelled. Class will begin on January 25 th. My plan is to make up the missed time and material, with alternative class periods to be scheduled later in the semester. These additional classes will be recorded to help resolve any scheduling conflicts. Professor Annecoos Wiersema may help teach these make up sessions, which will focus on international wildlife law. Disability Accommodations: If you have a disability/medical issue protected under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act and need to request accommodations, please visit the Disability Services Program website at You may also call , or visit in person on the 4 th floor of Ruffato Hall, 1999 E. Evans Ave. Attendance Policy: In accordance with ABA Standards, the law school requires that I have an attendance policy providing that I reserve the right to refuse to allow a student to take the final exam if the student has failed to attend 80% or more of the 28 class periods (i.e. you have to attend at least 22 of the 28 classes). Accordingly, I will take attendance at the beginning of each class. Grading: Your final grade will consist of a final exam (80%) and a short analytic paper (20%). Office Hours: I don t have an office but I m happy to meet to discuss things anytime over a cup of coffee or answer questions by phone or (720) , jtutchtontlo@gmail.com (1) January 9, 2018 Class cancelled (2) January 11, 2018 Class cancelled (3) January 16, 2018 Class cancelled (4) January 18, 2018 Class cancelled (5) January 23, 2018 Class cancelled Class Schedule and Reading Assignments 1

2 Unit 1: An Introduction to Wildlife Law Chapter 1 (6) January 25, 2018 Reading Assignment 1: Text pp. 1-21, Chapter 1, An Introduction to Wildlife Law, (1) What is Wildlife? (1A) Life, (1B) Wild, State v. Couch (two decisions). (7) January 30, 2018 Reading Assignment 2: Text pp , Chapter 1, (2) Roles of Wildlife Law, (2A) Unregulated Utilization, Pierson v. Post, (2B) Conservation, (2B(i)) Traditional Regulation, Washington Kelpers Association v. State, (2B(ii)) Market-Based Conservation, Strong v. United States, (2C) Ecology, State v. Sour Mountain Realty, Inc. (8) February 1, 2018 Reading Assignment 3: Text pp , Chapter 1, (3) The Ethics of Wildlife, (3A) Anthropomorphism, (3B) Holism, Aldo Leopold, (3C) Individualism, (3C(i)) Animal Welfare: Criminalizing Cruelty, State v. Cleve, (3C(ii)) Animal Rights: Duties to Wildlife?, People ex rel, the Nonhuman Rights Project, Inc. on Behalf of Tommy v. Lavery, Peter Singer, Tom Regan, (3C(iii)) Holism and Individualism: A Reprise Unit 2: Acquiring Property in Wildlife Chapter 2 (9) February 6, 2018 Reading Assignment 4: Text pp , Chapter 2, Acquiring Property In Wildlife, (1), The Allocation of Rights in Wildlife, (1A) The English Common-Law Background, The Case of the Swans, (1B) The Common Law in a New World, Pierson v. Post, Ghen v. Rich, (2) Limits on the Power to Capture, (2A) Private Ownership of Land as a Limit on the Power to Capture, Fisher v. Steward, State v. Corbin, (2B) State Regulation as a Limit on the Power to Capture, Jones v. Metcalf, State v. Bartee (10) February 8, 2018 Reading Assignment 5, Text pp , Chapter 2, (2C) Animal Rights and the Future of Hunting, People v. Sanders, (3) Durability of Private Rights in Captured Wildlife, Brown v. Eckes, Shepard v. Leverson, E.A. Stephens & Co. v. Albers, Graves v. Dunlap Unit 3: Wildlife and Private Property in Land Chapter 3 (11) February 13, 2018 Reading Assignment 6, Text pp , Chapter 3, Wildlife and Private Property in Land, (1) Fast Land (A) The English Common-Law Background, (i) Property in Land and Wildlife: The Role of the Sovereign, Sutton v. Moody, (i) Further Limits on Landwoner Rights: Varmints, Geush v. Mynns, (iii) Protecting Wildlife on Private Lands, Keeble v. Hickeringill, (1B) Private Land and Wildlife in the New World, (i) Property in Land and Wildlife: The Role of the Sovereign, Cawsey v. Brickey, Alford v. Finch, (ii) Defending Land Against Wildlife, Barrett v. State, State v. Thompson, (iii) Protecting Wildlife on Private Lands, Harrison v. Petroleum Surveys, Inc., (iv) The Power to Transfer Access, Millbrook Hunt, Inc. v. Smith Unit 4: State and National Governments in the Federal System Chapter 4 (12) February 15, 2018 Reading Assignment 7, Text pp , Chapter 4, State and National Governments in the Federal System, (1) State Proprietary and Sovereign Powers to 2

3 Protect Wildlife, Geer v. Connecticut, (2) Federal Constitutional Limits on State Powers, (2A) The Privileges and Immunities Clause, Toomer v. Witsell, Baldwin v. Fish & Game Commission (13) February 20, 2018 Reading Assignment 8, Text pp , Chapter 4, (2B), The Dormant Commerce Clause: Impermissible Burdens on Interstate Commerce, (3) State Adoption of Trust Concepts, (A) The Proprietor as Trustee, Hughes v. Oklahoma, State v. Fertterer, (B) Vested Rights and the Fifth and Fourteenth Amendments, (i) Personal Property, Andrus v. Allard, (4) Modern Stat Duties as a Trustee, (A) the Power to Seek Compensation for Damages to the Corpus of the Trust, State Department of Fisheries v. Gillette, (B) Duty of the Trustee to Conserve the Corpus of the Trust, Center for Biological Diversity, Inc. v. FPL Group, Inc. (14) February 22, 2018 Reading Assignment 9, Text pp , Chapter 4, (5) Affirmative Federal Power over Wildlife, (A) Preemption of State Law, (i) The Treaty Clause, Missouri v. Holland, (ii) The Affirmative Commerce Clause, Douglas v. Seacoast Products, (B) Federal Power over Federal Lands: The Property Clause, Hunt v. United States, Kleppe v. New Mexico, (C) The State Role on Federal Lands, Wyoming v. United States Unit 5: Federal Wildlife Laws Chapter 8 (15) February 27, 2018 Reading Assignment 10, Text pp , Chapter 8, Federal Wildlife Laws, (1) The Lacey Act, (A) The Constitutional Context of the Lacey Act, (B) The Genesis of the Lacey Act, (C) The Lacey Act of 1900, (D) The Lacey Act Amendments of 1981, (E) The Captive Wildlife Safety Act, (F) Lacey Act Coverage: Definitions, (G) Lacey Act Offenses, United States v. Carpenter, United States v. Lee (16) March 1, 2018 Reading Assignment 11, Text pp , Chapter 8, (2) Wild Birds, (A) The Migratory Bird Treaty Act of 1918, (i) Coverage, United States v. Darst, Humane Society v. Glickman, (ii) Liability Standards, United States v. Boynton, United States v. Apollo Energies, (iii) Except as Permitted by Regulations, The Fund for Animals v. Kempthorne, (B) Bald and Golden Eagle Protection Act, United States v. Moon Lake Electric Association (17) March 6, 2018 Reading Assignment 12, Text pp Chapter 8, (4) Managing Commercial Species, (A) The Marine Mammal Protection Act of 1972, (i) Prohibitions and Penalties, United States v. Hayashi, (ii) Exceptions to the Taking Prohibition, Earth Island Institute v. Brown, Kokechick Fishermen s Association v. Secretary of Commerce, Center for Biological Diversity v. Salazar Unit 5: Endangered Species Chapters 9 & 10 (18) March 8, 2018 Reading Assignment 13, Text pp , Chapter 9, Biodiversity: A Primer on Science, Values and Policy. Paper Assignment. Spring Break March 12-16, 2018 (19) March 20, 2018 Reading Assignment 14, Text pp , Chapter 10, Endangered Species: An Overview, (1) Endangered Species Acts: The Evolution of Endangered Species 3

4 Protection and an Overview of the Law, (2) Assessing the Risk of Extinctions: The Listing Decision, (A) Listable Units, (i) Species and Subspecies, (ii) Distinct Population Segments, Maine v. Norton, (iii) Other Listable Units? Trout Unlimited v. Lohn (20) March 22, 2018 Reading Assignment 15, Text pp , Chapter 10, (iv) Significant Portion of Range, Defenders of Wildlife v. Norton, (v) Science in the Listing Process, (B) Listing Determinations (i) Procedures and Standards, (ii) Risk Assessments and Listing Determinations, Home Builders Association of Northern California v. U.S. Fish and Wildlife Service, (iii) Consideration of Conservation Efforts, Oregon Natural Resources Council v. Daley (21) March 27, 2018 Reading Assignment 16, Text pp , Chapter 10, (3) Preventing Extinction, (A) Critical Habitat Designation, (i) Whether to Designate Critical Habitat, Conservation Council for Hawaii v. Babbitt, (ii) Defining the Scope of Critical Habitat, Arizona Cattle Growers Association v. Kempthorne (22) March 29, 2018 Reading Assignment 17, Text pp , Chapter 10, (B) Consultation, (i) The Basic Approach, TVA v. Hill, (ii) Procedural Requirements, Forest Guardians v. Johanns, National Association of Homebuilders v. Defenders of Wildlife (23) April 3, 2018 Reading Assignment 18, Text pp , Chapter 10, (iii) Substantive Standards, (A) Jeopardize the Continued Existence of a Listed Species, National Wildlife Federation v. Marine Fisheries Service, (B) Destruction of Adverse Modification of Critical Habitat, Sierra Club v. U.S. Fish and Wildlife Service, (C) Incidental Take Statements (24) April 5, 2018 Reading Assignment 19, Text pp , Chapter 10, (C) Prohibitions and Penalties, (i) Overview of Prohibitions, (ii) Prohibitions of Taking, Babbitt v Sweet Home Chapter, Palila v. Hawaii Department of Land and Natural Resources, Marbled Murrelet v. Babbitt, Defenders of Wildlife v. Bernal, (iii) Civil and Criminal Penalties (25) April 10, 2018 Reading Assignment 20, Text pp , Chapter 10, (iv) Permissible Taking of Listed Species, (A) Incidental Take Statements and Incidental Take Permits, National Wildlife Federation v. Babbitt, (B) 4(d) Rules, In re Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation (26) April 12, 2018 Reading Assignment 21, Text pp , Chapter 10, (v) Exceptions and Exemptions. (vi) Prioritization and Triage, (4) Recovery Actions, (A) Recovery Planning, (i) The Obligation to Develop a Recovery Plan, Sierra Club v. Lujan, (ii) Contents of Recovery Plans, Defenders of Wildlife v. Babbitt, (iii) The Uses of Recovery Plans (27) April 17, 2018 Reading Assignment 22, Text pp , Chapter 10, (B) Affirmative Obligations to Recover Listed Species, Pyramid Lake Paiute Tribe v. U.S. Navy, House v. United States, (C) Reintroducing Listed Species, Wyoming Farm Bureau Federation v. Babbitt, (D) Delisting as Recovered, Defenders of Wildlife v. Hall, (5) Assessing the ESA (28) April 19, 2018 Catch-Up and Review, Paper Due 4

5 FINALS: May 2-17, 2018 Grades Due: June 7,