Introduction to the legal consideration of wild animals in the United States

25 Oct 2020

The legalities of helping and harming animals in the wild in the United States are shaped by many variables, such as the animals’ species, where the animals live, and the nature of the activity. This is because wild animals1 of different species and population groups are treated differently under the law in the United States. Further, many of the laws affecting the lives of wild animals are under the purview of state governments, and therefore many of the laws are not uniform across the US. A range of legislation and regulation at the federal, state, and local levels provide certain forms of protection to some wild animals in some cases.

Background: the legal status of wild animals in the US

In order to understand how individuals or organizations might assist wild animals in the US, it is important to first know the fundamental legal status of wild animals.

The legal status of a person, animal, or object determines the types of rights and responsibilities they hold.2 For example, a “person” under federal law is entitled to a suite of legal rights and protections that do not apply to, say, “property.” However, wild animals, like other animals, do not enjoy legal personhood. In the US, they are considered the property of the state in which they are found. They are property in a “special legal way.”3 Unlike buildings or land, wild animals are instead widely conceived of as a natural resource, to be conserved and cared for by the state, on behalf of its citizens, who own the wild animals as a resource in common.4 There is a common law concept known as the “Public Trust Doctrine” (PTD), which applies to public resources like waterways and animal habitats. Currently, wild animals have a similar legal status to these resources, and the PTD has been applied to them as well.5 Some states have explicitly enshrined the Public Trust Doctrine for wild animals into statutory provisions,6 though the law as it relates to wild animals apart from fishes has not been well developed and a broad application of it has been challenged in court.7 As trustees of wild animals, in some cases state governments can seek legal remedies against individuals and organizations if wild animals are harmed, though only when they are harmed in ways that are regarded as unlawful.8

The Tenth Amendment of the US Constitution states that powers that are not delegated to the federal government by the Constitution are to be reserved to the states.9 As a result, states are empowered to create laws and regulations relating to wild animals within their borders.10 There are some exceptions to this ability.

The first exception is where there is a valid federal law that is inconsistent with state law or regulations; if this occurs, the state or local statute or ordinance is invalid to the extent that it is inconsistent with the federal law.11 This is because, as per the Supremacy Clause of the US Constitution, federal law is deemed the “supreme law of the land.” There are three clauses within the United States Constitution that empower numerous agencies within the federal government to make laws that can impact upon the state’s ability to regulate wild animals. They are the Commerce Clause, the Treaty Clause, and the Property Clause.12 Following the federal government’s signing of the multilateral Migratory Birds Treaty (which it is empowered to do under the Treaty Clause), for example, states are prohibited from permitting their citizens to hunt protected migratory birds.13

The second limitation on state control is where there are specific Native American treaty rights that operate in the same area.14 Despite state laws banning or limiting, for example, the killing of particular species of wild animals, if a treaty empowers Native American groups to kill wild animals of that species, they will not be bound by the state law.15 This is because treaties have the status of federal law.16 In federally approved Native American reservations, groups are able to create regulations governing its member and non-member treatment of wild animals within the boundaries of the reservation.17 Off-reserve – and particularly in relation to non-members – these powers are generally weaker, because courts determine the validity of Native American regulations in relation to whether the regulation is “necessary to protect tribal self-government or to control internal relations.”18

The third limitation on the ability of states to legislate in relation to wild animals is where the laws or regulations would infringe upon a citizen’s private rights. Private land-owners are allowed to protect their economic interest borne from activities that harm wild animals, such as hunting and fishing, and they can claim compensation where the government or other individuals have interfered with these rights.19 This limitation is not tremendously expansive. The state can still regulate a private land owner’s ability to hunt on their own land and limit how they can affect the habitats of wild animals.20

In summary, wild animals in the US are generally considered to be public property held in trust by state governments. State governments (except for a few important exceptions) are therefore primarily responsible for the administration of laws and the creation of regulations regarding wild animals.21

Cases where wild animals are given some protection

For our purposes, wild animals can be thought of as falling into one of two broad categories: protected and unprotected.22 “Protected” wild animals are those who cannot (or in only limited situations) be harmed because they are members of species listed in state or federal legislation. Most of the “protected” species of wild animal are generally given these special protections due to human interest in their potential “aesthetic, ecological, educational, historical, recreational and scientific value.”23 That is, it is not a protection granted out of a consideration for the interests of the animals. Human interest in conserving their species can, however, result in the animals as individuals being protected from at least of some of the harms that might otherwise be lawfully inflicted upon them.

On the other hand, “unprotected” wild animals are animals that are either listed in legislation that expressly authorizes citizens and organizations to kill or otherwise harm them, or they are absent entirely from legislation and therefore “unprotected” from human activities that harm them. Most “unprotected” species are either classed as “pests,” or are simply species that have, for whatever reason, been excluded from legislation.

Whether or not animals of a particular species are protected will oftentimes depend on where the animals are located in the US. However, there are some generalizable categories of protection that animals are often grouped into. We will now consider those categories.

Animals of species considered to be threatened or endangered

Species are granted particular legal protections if they are listed under the federal Endangered Species Act (ESA) as “endangered” or “threatened.” The ESA prohibits a broad range of actions by people that impact members of the listed of endangered or threatened species.24 An “endangered” species is a species that is “in danger of extinction throughout all or a significant portion of its range,”25 and a “threatened” species is one that is “likely to become an endangered species within the foreseeable future.”26 The ESA states that a person cannot “take” a listed wild animal; “take” is broadly defined in the legislation as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”27 Further, “harass” is defined broadly, and includes: “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering.”28

At the time of writing, there are 1470 animal species listed under the ESA.29 The US Fish and Wildlife Service and the National Marine Fisheries Service are primarily responsible for listing, delisting, and reclassifying species under the ESA, which indicates clearly that the purpose of the list is to serve human interests rather than those of the animals.30 Determinations concerning which animals should be included in the list must be based “solely on the basis of the best scientific and commercial data… after conducting a review of the status of the species….”31 Citizens can create petitions to list or delist species, which must be considered by the Secretary of the Interior within 90 days of receiving the petition.32 There are exceptions to the restrictions on “taking” listed species; a person can apply for permits to “take” endangered or threatened species for “scientific purposes or to enhance the propagation or survival of the affected species.”33 What “taking” usually means here is capturing certain animals.

States also have conservationist laws covering animals of certain species; however, they cover less and are less restrictive than the federal ESA.34 It is important to bear in mind, however, that states can also list species as endangered under their own legislative schemes, and most of these schemes also prohibit “taking” a listed species.35

Migratory birds

In 1916 the US enacted the Migratory Bird Treaty Act (MBTA), giving effect to a treaty with the United Kingdom. The Act was later amended with treaties with four additional countries.36 Under the MBTA, a person is prohibited from “taking, killing, or possessing” a listed bird “at any time, by any means” in the US.37 The MBTA together with several other Acts resulted in the list of protected migratory birds.38 Importantly, most native bird species in the US are included. There are some exceptions to the applicability of the list. First, non-native species and some birds regularly killed by hunters are not protected; for example, captive-reared mallard ducks and water birds can be killed freely without a permit.39 Second, the military is exempt from these provisions if the “taking” of listed migratory birds is merely incidental to a military readiness activity.40 Third, the Secretary of the Interior is empowered under the MBTA to allow the indigenous citizens in Alaska to take migratory birds and eggs if they are using it as a source of food.41 Lastly, migratory birds, despite being listed, can be killed if they are considered “seriously injurious to the agricultural or other interests in a particular community.”42

Regulations of hunting

In line with the perception that wild animals are human property owned in common by the public, federal and state governments place restrictions around the killing of wild animals by hunters. These are mainly to ensure that populations of animals are not killed off. This is done to benefit the humans who use animals as resources (mainly hunters) and not to benefit the individual animals in the population. The legal mechanisms include limits on where animals can be hunted, which methods can be used,43 how many animals can be killed, specific hunting seasons, licenses, and license requirements.44 The rules around which species can be hunted and when are location-specific; it depends on whether a person is hunting on national wildlife refuges, Bureau of Land Management managed public lands,45 or national preserves.46 Outside hunting seasons, and without a permit, it is illegal to kill or “take” wild animals that are listed for hunting.

Anti-cruelty legislation

In many states there are animal cruelty statutes that can apply to wild animals.47 These statutes commonly prohibit so-called “unnecessary killing or cruel treatment of animals.”48 “Animals,” for the purposes of the statutory provisions, are defined differently across states. Some states explicitly exclude wild animals,49 or exclude certain wild animal taxa, such as invertebrates or fishes. Other states adopt an expansive definition, including all animals in the animal kingdom.50 In addition to prohibiting certain ways of harming animals, these anti-cruelty statutes can sometimes operate as an exception to the rule against killing or “taking” protected wild animals, such as birds listed under the MBTA.51 If an animal is “so injured or diseased as to appear useless and is suffering” and it is reasonable to believe that the animal cannot be cured, people are able to kill or “take” the protected animal.

In summary, there are many types of statutorily protected wild animals in the US, but the protection is usually limited or is intended to serve human interests and only benefits individual animals incidentally. Any intervention to help wild animals needs to consider what, if any, statutory protections affect members of that species in the specific jurisdiction in which they are found. There are broad categories of protection that wild animals might be afforded, particularly if the animals are endangered or threatened, or are migratory native birds. There are also general considerations under state anti-cruelty legislation.

Cases where animals may be deprived of any protection

Animals of species classified as “invasive” or “injurious”

The federal government has legislated to allow federal departments and bureaus to “control” animals belonging to species classified as “invasive.” The term “control” is defined as “the eradication, suppression, or reduction of the population of the invasive species.”52 A species being non-native is not enough to be legally classified as “invasive.”53 An “invasive species” is defined as a non-native, or “alien” species, “which causes, or is likely to cause, economic harm to human interests, harm to human health,” or what is defined as environmental harm.54 These animals are then listed under the Lacey Act which classifies them as “injurious” animals.55 The FWS is generally responsible for listing species under the Lacey Act as injurious.56 There are currently 726 species listed as injurious across the United States by the FWS.57 The Lacey Act prohibits the movement of listed injurious animals across state borders. A person may apply to the FWS for a permit to import and export “injurious” wild animals interstate; however there must be an approved purpose (such as for scientific or medical purposes), and the “injurious” wild animals must then be held in captivity.58

If a species is listed as injurious, the only statutory protection that would apply to these animals would be anti-cruelty legislation.

Animals affected by statutory exceptions or “carve outs”

It is worth noting that a person can apply for permits from federal and state governments to kill any protected animal if the animal is considered injurious to a person’s economic interests.59 These are generally called “depredation” or “control” orders. These permits would only allow the individual applicant to kill animals of the specific species in a specific area whose presence is considered to be causing economic harm.

There are other instances where certain wild animal species are carved out of legislation that might otherwise afford them protection. One example is a federal statute that states that “all Acts and parts of Acts making it unlawful to kill sea lions, as game animals or otherwise, in the waters of the Territory of Alaska are repealed.”60 Additionally, some birds (such as blackbirds, cowbirds, grackles, crows, and magpies) are listed under a federal depredation order which allows people to take animals from listed species of birds without a permit.61

Use of pesticides

Legally, pesticides are defined as “any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest.”62 The use of pesticides is regulated by federal and state laws. The US Environmental Protection Agency (EPA) regulates pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Toxic Substances Control Act (TSCA).63 They evaluate the risks of harm to human health and the environment. After a pesticide passes the EPA’s evaluation, it becomes “registered,” and it is then permitted to be sold and used according to the requirements set by the EPA. There is no permitting system for pesticide use (even large-scale use) once a pesticide has been approved for commercial use;64 if pesticides are commercially available, then a person is able to use them to kill wild animals provided that the instructions on the labels of pesticides are followed.65 If the EPA has listed the pesticide in “restricted-use pesticides,” the application of that pesticide will require supervision by a certified applicator.66

Legalities behind actions potentially benefiting animals

There are many different courses of action that can be followed with the aim of benefiting wild animals. Because this is an introductory paper, we will not cover them all, or examine in detail under what circumstances they may or may not be legal. But we will see three examples of interventions that can potentially be used to reduce wild animal suffering.

Capture and relocation

If a species is protected under state, Native American, or federal law, it is unlawful for a person in the United States to “take” them or to transport them interstate.67 The Lacey Act also limits the relocation of certain animals.68 Additionally, if a person intends to alter the habitat of a listed animal under the Endangered Species Act, they must apply for a federal permit, which must contain a conservation plan.69 These regulations can protect some animals from being harmed. Unfortunately, it can also make it illegal to rescue some animals, which may be needed if their state of health requires them to get assistance, if they are orphans that need to be taken care of, and in other situations.

Contraceptives

Administering contraceptives to wild animal populations is being explored as a way to reduce the risk of disease transmission from wild animals to each other and to domesticated animals and humans. It is also considered instead of hunting in situations where there is a conflict between wild animal and human interests.70 It also has the potential to reduce wild animal suffering caused by food scarcity, disease, and other circumstances. Currently there are two immunocontraceptives (vaccines that prevent the process of fertilization) that have been approved for animal use in the US: GonaCon™ and SpayVac™.71 These contraceptives have been used for populations of African elephants, wild horses, bison, and deer; however, more research is being done on contraceptives for other species.72 The EPA is responsible for regulating the contraceptives used for wild animals.73 In order to register a new contraceptive, a person or organization must provide studies showing the chemistry of the product, its toxicity, non-target hazards, and environmental impacts.74 The two approved immunocontraceptives are listed as “restricted use” pesticides, and so can only be administered by, or under the supervision of, certified pesticide applicators.75

Genetic modification

Advancements in biotechnology have seen the advent of “genome editing technology,” whereby the DNA sequences of organisms are targeted and directly altered.76 Further advancements in this technology could be used to reduce the suffering of wild animals. This form of intervention is often identified with long-term efforts to achieve a better situation for animals. But it could also be implemented to reduce wild animal suffering in the short term. Examples of this could include altering harmful traits or increasing resistance to diseases.77

The US Food and Drug Administration (FDA) has determined that the intentionally altered portion of an animal’s genome, whether mediated by rDNA or modern genome editing technologies, is subject to the regulation under the FDA administered provisions as if it were an animal drug.78 Therefore the development of a genetically modified organism will likely need to be approved by the FDA.

Currently, it is unclear which government authority will be responsible for regulating field trials and other releases of genetically modified organisms once they have been approved by the FDA. There is regulatory overlap, and the regulatory system governing biotechnology in the US is currently being updated.79

Conclusion

The ability to assist wild animals in the US depends on a variety of variables such as the species of the animal, the location of the animal, and the planned intervention.

Wild animals are broadly considered to be the property of state governments, held in trust for the benefit of their citizens. If an action affects the state’s wild animal population in a way that is considered harmful, and no legal exception to the activity applies, a person may be liable for compensation payable to the affected state government. Interventions to help wild animals are made difficult by the overlapping regulations and their differing purposes, most of which do not take the wellbeing of the individual animals into account. Another result of this system is that the research and development of new vaccines and biotechnologies are difficult and expensive to pursue.


Notes

1 The phrase “wild animals” is frequently used in legislation. State legislatures within the U.S. generally follow the federal legal definition given to wild animals, which is as follows: “Wild animal means any animal which is now or historically has been found in the wild, or in the wild state, within the boundaries of the United States, its territories, or possessions… Wild state means living in its original, natural condition; not domesticated”: 9 C.F.R. § 1.1; see also I.C. 14-8-2-318 “Wild animal”, and I.C. 14-22-34-6 “Wildlife”; M.I. ST 324.43901 “definitions”; M.N. ST § 97A.015; N.V. ST 501.097; N.M. ST § 17-2-38; N.C. ST § 113-331; T.X. PARKS & WILD § 1.101.

2 Definition of “person”: “an individual, corporation, partnership, trust, association; or any other private entity; or any officer, employee, agent, department, or instrumentality of the federal government, of any state, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a state; or any other entity subject to the jurisdiction of the United States”: ESA, 16 U.S.C.A. § 1532(13) (1982).

3 See for example Ala. Code, § 9-11-230; Colo. Rev. Stat. § 33-1-101; Ariz. Rev. Stat. § 17-103; Wyo. Stat. § 23-1-103; I.C.A. § 481A.2; IC 14-22-1-1; Freyfogle, E. T.; Goble, D. D. & Wildermuth, T. A. (2009) “State ownership and the public interest”, Wildlife law: A primer, Washington, D. C.: Island, pp. 19-36. See Owsichek v. State, 763 P.2d 488, 495 (Alas. 1988); State v. McHugh, 630 So.2d 1259, 1265 (La. 1994).

4 McCready v Virginia, 94 U.S. 391 (1876); Geer v Connecticut, 161 U.S. 519 (1896); Hughes v Oklahoma, 99 S.Ct. 1727 (1979); see also Freyfogle, E. T.; Goble, D. D. & Wildermuth, T. A. (2009) “State ownership and the public interest”, op. cit.

5 Martin v. Waddell, 41 U.S. 16 Pet. 367 367 (1842); Batcheller, G. (ed.) (2010) The public trust doctrine: Implications for wildlife management and conservation in the United States and Canada, Bethesda: The Wildlife Society [accessed on 26 September 2020]. Meyers, G. D. (1989) “Variation on a theme: Expanding the public trust doctrine to include protection of wildlife”, Environmental Law, 19, pp. 723-735.

6 Additionally, 45 states are signatories to the US Interstate Wildlife Violator Compact, in which participating states agree that “wildlife resources are managed in trust by the respective states for the benefit of all their residents and visitors”: National Association of Conservation Law Enforcement Chiefs. “Wildlife violator compact”; see also The public trust doctrine: Implications for wildlife management and conservation in the United States and Canada, op. cit.

7 Frank, R. M. (2012) “The public trust doctrine: Assessing its recent past & charting its future,” UC Davis Law Review, 45, pp. 677-679 [accessed on 24 October 2020].

8 In this way it is close to, but distinct from, a public trust situation: Freyfogle, E. T.; Goble, D. D. & Wildermuth, T. A. (2009) “State ownership and the public interest”, op. cit.

9 U.S. Const. amend. X.

10 State v. Rodman, 59 N.W. 1098 (Minn. 1894); Ex parte Maier, 37 P. 402 (Cal. 1894).

11 The inconsistent state or local law or regulations would be “preempted.” Preemption is the principle “that a federal law can supersede or supplant any inconsistent state law or regulation”: Garner, B. A. (2019) Black’s law dictionary, 11th ed., Baton Rouges: Claitors; Edgar v. MITE Corp., 457 U.S. 624; see also U.S. Const. art. VI, § 2 which gives that federal law “shall be the supreme Law of the Land.”

12 Freyfogle, E. T.; Goble, D. D. & Wildermuth, T. A. (2009) “Key federal statutes”, Wildlife law: A primer, op. cit., pp. 180-205.

13 Migratory Bird Treaty Act, 16 U.S.C. §§ 703-711.

14 Freyfogle, E. T.; Goble, D. D. & Wildermuth, T. A. (2009) “Tribal rights to wildlife”, Wildlife law: A primer, op. cit., pp. 159-179.

15 Ibid.

16 It follows that Native American groups are bound by federal law, however: Ibid.

17 Ibid.

18 Ibid.

19 Freyfogle, E. T.; Goble, D. D. & Wildermuth, T. A. (2009) “Wildlife on private land”, Wildlife law: A primer, op. cit., pp. 57-75. Importantly, private land-owners cannot claim compensation for the value of the killed or injured wild animals on their land, as they do not own the wild animals.

20 Ibid; see also Collopy v. WILDLIFE COM’N, ETC., 625 P.2d 994 (Colo. 1981).

21 Musgrave, R. S.; Parker, S. & Wolok, M. (1993) “The status of poaching in the United States – Are we protecting our wildlife”, Natural Resources Journal, 33, 977-1014 [accessed on 30 September 2020].

22 The terminology “protected” and “unprotected” animals are used in some state legislations in order to categorize animals that are listed in particular legislation, and therefore afforded special legal protection, or not listed. See E.C.L. § 11-0103 (6); M.N. ST § 97A.015; N.V. ST 503.585 (for ‘protected’) and N.V. ST 503.380 (for ‘unprotected’); N.C. ST § 113-331; W.Y. ST § 23-1-101.

23 ESA, 16 U.S.C.A. § 1531 (1988).

24 Ibid.

25 16 USCA 1532 (6); Note that the bald and golden eagle is also specifically protected under federal legislation for conservation reasons: however this seems to be largely due to the fact that the bald eagle is the national symbol: U.S. v Wilgus, C.A. 10 (Utah) 2011, 638 F.3d 1274, 16 U.S.C.A. § 668.

26 16 USCA 1532 (20); 16 USCA § 1533 (a)(1).

27 16 USCA § 1532(19); see also Goble, D. D.; George, S. M.; Mazaika, K.; Scott, J. M. & Karl, J. (1999) “Local and national protection of endangered species: An assessment”, Environmental Science & Policy, 2, pp. 43-59. Note that legislation often uses the word “take” which is then defined similarly to this definition. It is important to always refer to the relevant legislative definition of “take,” however, as there tends to be small variations across different legislation.

28 50 C.F.R. § 17.3 (1998).

29 They can all be found listed in the U.S. Fish and Wildlife Service listed animals.

30 16 U.S.C.A. § 1533(b)(1)(A).

31 Ibid.

32 16 U.S.C.A. § 1533(b)(3)(A); see also Save Our Springs v. Babbitt, W.D.Tex.1997, 27 F.Supp.2d 739.

33 16 U.S.C.A. § 1539(a)(1)(A).

34 Goble, D. D.; George, S. M.; Mazaika, K.; Scott, J. M. & Karl, J. (1999) “Local and national protection of endangered species: An assessment”, op. cit.

35 “The endangered species legislation in 36 states provides statutory prohibitions against taking a listed animal species; 5 states authorize the wildlife agency to prohibit the taking of some groups of listed species…however, 6 states do not prohibit the taking of listed species on their land” (Ibid.); see also Lee, H.-J. L. (2004) “The pragmatic Migratory Bird Treaty Act: Protecting ‘property’”, Economic Dynamics of Environmental Law and the Static Efficiency, 31, pp. 649-681 [accessed on 2 October 2020].

36 Migratory Bird Treaty Act; also bald eagles and golden eagles are additionally protected under the Bald and Golden Eagle Protection Act.

37 16 U.S.C.A. § 703(a).

38 See Fish and Wildlife Service, Interior (2020) “General provisions; revised list of migratory birds”, Federal Register: The Daily Journal of the United States Government, 85, pp. 21282-21305 [accessed on 3 October 2020].

39 Lee, H.-J. L. (2004) “The pragmatic Migratory Bird Treaty Act: Protecting ‘property’”, op. cit.

40 16 U.S.C.A. § 703(3)(a).

41 16 U.S.C.A. § 712.

42 Lee, H.-J. L. (2004) “The pragmatic Migratory Bird Treaty Act: Protecting ‘property’”, op. cit.

43 18 U.S.C.A. § 47, for example, makes it illegal for persons to use an aircraft or motor vehicle to hunt or capture “any wild unbranded horse, mare, colt, or burro.”

44 See for example 16 U.S.C.A. § 701, which gives the Department of the Interior the duty and power to restore game birds and other wild birds to areas where they have become “scarce or extinct.”

45 16 U.S.C.A. § 683 The federal government can designate any area as being reserved for protecting game animals and fishes. Also breeding areas: 16 U.S.C.A. § 685.

46 18 U.S.C.A. § 41 makes it illegal for persons to kill or disturb wild animals that are on lands reserved as sanctuaries, refuges, or breeding grounds.

47 Sometimes they only apply to vertebrates (Nebraska, 28-1008), or sometimes they exclude fish (Oklahoma Tit. 21, § 1680.1). Illinois 510 § 70/2.01; (Nebraska, 28-1008; New Hampshire 655:8; Oklahoma Tit. 21, § 1680.1; Tennessee 39-14-201.

48 The standard is generally “intentionally” or “recklessly.”

49 For example, Arkansas (§ 5-62-103).

50 Sometimes also referred to in statute as “any living dumb creature.”

51 Rumley, E. R. & Rumley, R. W. (2011-2012) “Enforcing animal welfare statutes: In many states, it’s still the Wild West”, San Joaquin Agricultural Law Review, 21, pp. 21-49 [accessed on 5 October 2020].

52 16 U.S.C.A § 666c-1 (a)(1).

53 Keller, R. P.; Cadotte, M. W. & Sandiford, G. (2014) “Working across disciplines to understand and manage invasive species”, in Keller, R. P.; Cadotte, M. W. & Sandiford, G. (eds.) Invasive species in a globalized world: Ecological, social & legal perspectives on policy, Chicago: University of Chicago Press, pp. 1-20.

54 16 U.S.C.A § 666c-1 (a)(4)(A) and (B).

55 The FWS is not empowered to list native animals as injurious: Alexander, K. (2013) “Injurious species listings under the Lacey Act: A legal briefing”, Congressional Research Service, August 1 [accessed on 26 September 2020].

56 U. S. Fish and Wildlife Service (2012) “Injurious wildlife evaluation process flow chart”, U. S. Fish and Wildlife Service [accessed on 27 September 2020]

57 U. S. Fish and Wildlife Service (2019) “Summary of species currently listed as injurious wildlife under the Lacey Act (18 U.S.C. 42)”, U. S. Fish and Wildlife Service [accessed on 3 October 2020].

58 50 U.S.C.A. § 16.22.

59 50 C.F.R. § 21.41.

60 16 U.S.C.A. § 659.

61 U. S. Fish and Wildlife Service (2018) “Frequently asked questions about a federal depredation permit”, U. S. Fish and Wildlife Service [accessed on 23 September 2020].

62 7 U.S.C.A. § 136 (u).

63 Wozniak, C. A.; McClung, G.; Gagliardi, J.; Segal, M. & Matthews, K. (2013) “Regulation of genetically engineered microorganisms under FIFRA, FFDCA and TSCA”, in Wozniak, C. A. & McHughen, A. (eds.) Regulation of agricultural biotechnology: The United States and Canada, Dordrecht: Springer, pp. 57-94. See also Angelo, M. J. (2013) The law and ecology of pesticides and pest management, Burlington: Ashgate.

64 Ibid.

65 7 U.S.C.A. § 136 (2)(G).

66 40 C.F.R. § 152.175.

67 16 U.S.C.A. § 1538 “prohibited acts”; see also the Lacey Act 18 U.S.C 42 which prohibits the importation and shipment of illegally obtained wildlife interstate.

68 Lacey Act (16 U.S.C. §§ 3371–3378); Keller, R. P.; Cadotte, M. W. & Sandiford, G. (2014) “Optimism and other bias in rhetoric about exotic carps in America”, in Keller, R. P.; Cadotte, M. W. & Sandiford, G. (eds.) Invasive species in a globalized world: Ecological, social & legal perspectives on policy, op. cit., pp. 72-98.

69 Freyfogle, E. T.; Goble, D. D. & Wildermuth, T. A. (2009) “Wildlife on private land”, Wildlife law: A primer, op. cit., pp. 57-75.

70 Brennan, O. (2018) “Intervention report: Wildlife contraception”, Wild-Animal Suffering Research, December 20 [accessed on 22 October 2020].

71 Asa, C. & Moresco, A. (2019) “Fertility control in wildlife: Review of current status, including novel and future technologies”, in Comizzoli, P.; Brown, J. L. & Holt, W. V. Reproductive sciences in animal conservation, 2nd ed., pp. 507-543.

72 Ibid.

73 See also Fagerstone, K. A.; Miller, L. A.; Killian, G. & Yoder, C. A. (2010) “Review of issues concerning the use of reproductive inhibitors, with particular emphasis on resolving human-wildlife conflicts in North America”, Integrative Zoology, 1, pp. 15-30 [accessed on 12 October 2020].

74 Ibid.

75 Ibid.

76 National Academies of Sciences, Engineering, and Medicine (2016) Gene drives on the horizon: Advancing science, navigating uncertainty, and aligning research with public values, Washington, D. C: National Academies Press.

77 Ibid.

78 U. S. Department of Health and Human Services (2017) CVM GFI #187 regulation of intentionally altered genomic DNA in animals, Rockville: Center for Veterinary Medicine, Food and Drug Administration [accessed on 2 October 2020]; National Academies of Sciences, Engineering, and Medicine (2016) Gene drives on the horizon: Advancing science, navigating uncertainty, and aligning research with public values, op. cit.; 21 U.S.C. 321 states that the FDA has authority over new animal drugs. The definition of a drug is in section 201(g) of the Food, Drug, and Cosmetic Act. The definition of “new animal drug” is in section 201(v) of the Food, Drug, and Cosmetic Act.

79 U. S. Department of Health and Human Services (2017) CVM GFI #187 regulation of intentionally altered genomic DNA in animals, op. cit. “[The] USDA could be considered the regulatory authority under the Animal Health Protection Act (7 U.S.C. § 8301) if the mouse is considered a threat to animal health, or under the Plant Protection Act (7 U.S.C. § 7701) if the mouse poses a threat to plants. The FDA could also be considered the regulatory authority for the mouse because the genetic construct (the T complex) used to develop a gene drive in the mouse might be considered an animal drug, because the T complex would be used to influence fertility. Although, it is clear that suppressing or eradicating a species population is not encompassed by FDA’s six classes of animals “based on the intended purpose of the genetic modification.” Finally, the EPA could be considered the appropriate regulatory authority under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. § 136 et seq.) if the wild-type mice are considered pests, and the gene-drive modified mice or the gene drive construct within the mice is considered a “substance or mixture of substances intended for preventing, destroying, repelling, or mitigating” the wild-type animals that are considered pests (FIFRA § 2[u], 7 U.S.C. § 136[u]). See also National Academies of Sciences, Engineering, and Medicine (2016) Gene drives on the horizon: Advancing science, navigating uncertainty, and aligning research with public values, op. cit., table 8-2.