CHYENNE, Wyo. (June 4, 2020) – The Wyoming Game and Fish Commission opted not to hold a grizzly bear hunt authorized by the state legislature that would have nullified an unconstitutional federal court opinion. The commission argued that the “supremacy clause” prohibited the hunt.

In 2017, the U.S. Fish and Wildlife Service delisted grizzly bears as a threatened species under the federal Endangered Species Act. In order to manage the growing bear population, the Wyoming Game and Fish Commission scheduled a limited grizzly bear hunt for August 2018. But U.S. District Court Judge Dana Christensen’s issued a ruling that restored the species’ “threatened” status under the Endangered Species Act, thereby nixing the hunt.

During the 2019 legislative session, Gov. Mark Gordon signed a bill into law that set the stage to authorize a grizzly bear hunt despite the court’s opinion.

Sen. Wyatt Agar (R-Weiser) sponsored Senate Bill 93 (SF93). Under the law, the Wyoming Game and Fish Commission “may conduct a grizzly bear hunt and shall issue licenses … which shall provide for the dates, times and locations of the hunts” if “the game and fish commission determines under the laws of the state of Wyoming that a grizzly bear hunt would be beneficial for managing Wyoming’s wildlife and for protecting Wyoming workers and other citizens and tourists of the state.”

The Senate passed SF93 by a 27-1 margin. The House approved the measure 52-7. With Gov. Gordon’s signature, the law went into immediate effect.

The law does not require the Wyoming Game and Fish Commission to authorize a hunt, but it did open the door to defy the federal judge. The commission refused to walk through that door.

In April, the commission opted not to authorize the hunt, but not based on its benefits or lack thereof. In fact, commissioners unanimously agreed that a hunt would meet the laws’ criteria to justify it. According to the Jackson Hole News and Guide,  Patrick Crank, an attorney on the board, “explained that 230 years of case law supported the U.S. Constitution’s Supremacy Clause, which establishes the precedence of federal laws over state law.”

But Crank relied on a bastardized version of the supremacy clause that ignores three key words –  “In pursuance thereof.” The clause does not read, “This Constitution…and any old act Congress decides to pass…shall be the supreme law of the land.” Only acts within the scope of the federal government’s delegated powers rise to the status of supreme law. Acts outside of those powers constitute usurpation. They are, by definition, null, void and of no force.

The federal government doesn’t have the constitutional authority to regulate wildlife. In fact, the U.S. Fish and Wildlife Service is an illegal agency under the Constitution. As Alexander Hamilton wrote in Federalist #78, “No legislative act, therefore, contrary to the constitution, can be valid.”

The legislative findings in SF93 assert the state’s sovereignty within the constitutional system.

“The tenth amendment to the United States Constitution guarantees to the states and their people all powers not granted to the federal government elsewhere in the constitution and reserves to the state and the people of Wyoming certain powers as they were understood at the time that Wyoming was admitted to statehood in 1890.  The guaranty of those powers is a matter of contract between the state and people of Wyoming and the several states comprising the United States as of the time the Act of Admission was agreed upon and adopted by Wyoming and the several states in 1889.”

Commissioners expressed concern that if they authorized a hunt, the feds could prosecute any hunter who actually shot a bear. The feds may or may not have enforced the judge’s opinion, but as we have seen with marijuana, the federal government has a difficult time enforcing its will without state cooperation. And some hunters might have been willing to take on the risk of federal prosecution, just like many people chose to ignore federal marijuana laws despite the possibility of arrest.

Ultimately, the commissioners punted their responsibility to hold the federal government in check and maintain the state’s sovereignty.

Mike Maharrey

The 10th Amendment

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