Wednesday, January 07, 2009

First Circuit Holds that the Wild and Scenic Rivers Act Does not Preempt State Law

Per Fitzgerald v. Harris, 549 F.3d 46 (1st Cir. Dec. 5, 2008):

This case raises the issue of whether a Maine statute governing the management of a state-administered river, the Allagash Wilderness Waterway (“AWW”), Me.Rev.Stat. Ann. tit. 12, § 1882, is preempted by certain sections of a federal statute, the Wild and Scenic Rivers Act (“WSRA”), 16 U.S.C. § 1271 et seq.

. . .

The WSRA does address preemption, but in ways distinctly unhelpful to FitzGerald. Specific provisions of the WSRA limit any federal displacement of a state's authority over its section 2(a)(ii) rivers. Even on federally-administered rivers (unless within a national park or monument), state jurisdiction over hunting and fishing laws is unaffected by the WSRA. Id. § 1284(a). With respect to state water rights, the WSRA is neither a claim nor denial on the part of the federal government of state jurisdiction over the waters of any included river. Id. § 1284(d). Moreover, the WSRA expressly disclaims preemption of a state's right to access the beds of component rivers. Id. § 1284(f). And the WSRA specifically prohibits federal condemnation of state-owned lands. Id. § 1277(a)(1). The WSRA's overarching respect for a state's authority over its own designated rivers refutes FitzGerald's claim of conflict preemption.

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