For purposes of illustrating the extraterritorial reach of the Property Clause, Professor Appel offered the following hypothetical statute:
"[S]uppose that the United States wished to enhance the visitor experience to an existing national park. What if, to further this goal, Congress directed the National Park Service to preserve the visual corridor leading to the park; expressly banned fast food restaurants, trinket shops, and other unsightly structures; and devised clear aesthetic requirements for nearby buildings that were more restrictive than local zoning laws? *** [O]ne can imagine that certain local or state governments would vigorously protest. If faced with these challenges, a federal court might invalidate [this hypothetical act] under the Commerce Clause. An alternative argument based on the Property Clause, however, suggests that courts should sustain [this hypothetical act]." 200/
Professor Appel concluded: “the tangible presence of federal property—rather than the abstract concern that Congress may have with interstate commerce—provides a sufficient nexus between the federal concern and the activity regulated.” 201/
Now suppose Congress were to create the Denali Wolf Protection Act as follows:
Section 1. Congressional Findings & Declaration of Policy. 202/
a. Congress finds and declares that wolves that make their home in Denali National Park and Preserve are a national symbol of inestimable value; that they are a keystone species of Denali National Park and Preserve; that they contribute to the diversity of life forms within and constitute an essential attribute of the value of the park;
b. Congress finds and declares that the wolves of Denali enrich the lives of the American people; that it is in the national interest to preserve the wolves of Denali; that it is in the national interest to preserve opportunities for the maximum number of Americans to view wolves in Denali National Park and Preserve; that nearly 600,000 visitors to the park in 2016 translates into a high probability that millions of Americans will visit the park over the coming five years alone, yet the likelihood that these millions of Americans will see a wolf in the park has become insignificant; that in 2010 visitors to the park had a 45 percent chance of spotting a wolf, whereas as of 2015, the percentage is a mere 5 percent;
c. Congress finds and declares that the intentional killing of the wolves of Denali both on and off federal land interferes with the purpose of Denali National Park and Preserve; that the interference is unreasonable, especially given that the park is home to the First Family of American wolves; that it is in the national interest that henceforth no Denali wolf, let alone a member of the First Family of American wolves, shall be shot by a hunter or left to die in a trap;
d. Congress finds and declares that state regulation insufficiently protects the wolves of Denali.
e. Now, therefore, it is the policy of Congress that the wolves of Denali National Park and Preserve shall be protected from harassment, capture, and death; and to accomplish this policy, the wolves of Denali National Park and Preserve are to be considered an integral part of the natural system of the public lands known as Denali National Park and Preserve.
Section 2. Definitions. 203/
As used in this chapter:
a. “Secretary” means the Secretary of the Interior;
b. “Wolves of Denali National Park and Preserve” means all wolves within the Denali Wolf Protection Area;
c. “Denali Wolf Protection Area” means Denali National Park and Preserve, all nonfederal lands within Denali National Park and Preserve, and the area outside the boundaries of Denali National Park and Preserve but not beyond the Scientifically Based Geographical Area; and
d. “Scientifically Based Geographical Area” means the area hereinafter specified that is outside the boundaries of Denali National Park and Preserve and which is necessary (i) for the preservation of the Wolves of Denali National Park and Preserve and (ii) for the preservation of opportunities for the American people to view such wolves in Denali National Park and Preserve. Such area is specifically identified as follows: [to be identified by Congress].
Section 3. Sanctuary; actions by agent of Secretary. 204/
Denali National Park and Preserve is designated as a wolf sanctuary, and within the Denali Wolf Protection Area, no wolf shall be harassed, and in no event shall a wolf be captured or destroyed except by an agent of the Secretary as determined necessary by the Secretary.
Section 4. Cooperative Agreements; regulations. 205/
The Secretary is authorized to enter into cooperative agreements with other landowners and with the State of Alaska and local governmental agencies and may issue such regulations as the Secretary deems necessary for the furtherance of the purposes of this chapter.
Section 5. Criminal Provisions—Violation; penalties. 206/
Any person who:
a. willfully removes or attempts to remove a wolf from the Denali Wolf Protection Area without authority of the Secretary,
b. converts a wolf of Denali National Park and Preserve to private use without authority of the Secretary,
c. maliciously causes the death or harassment of a wolf within the Denali Wolf Protection Area,
d. processes or permits to be processed into commercial products the remains of a wolf of Denali National Park and Preserve,
e. sells, directly or indirectly, a wolf of Denali National Park and Preserve, or the remains thereof, or
f. willfully violates a regulation issued pursuant to this chapter
shall be subject to a fine of not more than [to be identified by Congress] or imprisonment for not more than [to be identified by Congress] or both.
In Kleppe, the Supreme Court expressly reserved the question of the constitutionality of the Wild Horses Act’s regulation of nonfederal land. 207/ But the Court showed a level of deference to Congressional determinations of what constitutes “needful” rules “respecting” federal land. 208/ The Court wrote: “we must remain mindful that, while courts must eventually pass upon them, determinations under the Property Clause are entrusted primarily to the judgment of Congress.” 209/
The first question for a court, under the Alford-Camfield Nexus Rule, 210/ is whether the hypothetical act is reasonably necessary. Here the answer would appear to be in the affirmative, assuming Congress were to determine that the killing of the wolves of Denali on nonfederal land interferes with Denali National Park and Preserve as such and that the interference is unreasonable as stated in Section 1 of the hypothetical act.
The hypothetical act includes the finding “that state regulation insufficiently protects the wolves of Denali.” 211/ The hypothetical act also includes the following declaration of policy: “the wolves of Denali National Park and Preserve are to be considered an integral part of the natural system of the public lands known as Denali National Park and Preserve.” 212/ The policy and the finding point to the rationale for the Property Clause rule that Congress may legislate to protect federal land—namely, in the words of the Camfield Court, a “different rule would place the public domain of the United States completely at the mercy of state legislation.” 213/
Having found evidence of a reasonable necessity for the regulation, a court could exercise some deference to Congress’s judgement on the needfulness of the act. 214/
The second question for a court, under the Alford-Camfield Nexus Rule, is whether the regulated activity has a substantial relationship to federal land. Again, the answer would appear to be in the affirmative. While the hunters and trappers of the Denali wolf may not intend to interfere with the purpose of Denali National Park and Preserve, the hunters and trappers intend to do the acts that are the proximate cause of the interference. 215/ One trapper reportedly quipped after killing his third female Denali wolf: “That was the third time I ruined millions of people’s Denali National Park viewing experience.” 216/ The trapper may have been joking, but the hypothetical act includes the finding “that nearly 600,000 visitors to the park in 2016 translates into a high probability that millions of Americans will visit the park over the coming five years alone.” 217/
Moreover, the hypothetical Denali Wolf Protection Act has a geographic limit, unlike the Wild Horses Act 218/ and not unlike the statute upheld in Alford. 219/ Congressional policy would need to define that limit. The hypothetical act calls the regulated area outside the boundaries of Denali National Park and Preserve the “Scientifically Based Geographical Area.” 220/ Here congressional policy would reflect study and science, identifying a geographic limit that addresses the killing of the wolves of Denali. For example, a Denali wolf advocate has called for recognition of “true ecological boundaries” thusly:
"The map boundaries—even with the 1980 park additions, which were originally proposed primarily to protect Denali’s wolves—do not align with this world-class wildlife system’s most important ecological boundaries, especially in the northeastern area, where Denali’s most important wildlife wintering area is left largely unprotected. The most glaring omission from true ecological boundaries is the Wolf Townships, a rectangular notch that juts into the eastern park just a few miles from the park road. It is an essential and regular part of the wolves’ natural ecosystem territory." 221/
The proximity of the regulated area and the science behind identifying the area the wolves of Denali may need strengthen the case for the hypothetical act’s constitutionality. The geographic limit is a form of no-wolf-kill buffer zone between federal land and regulation-free, nonfederal land. With the proximity of the regulated area, and evidence of a reasonable necessity for the hypothetical act, there would appear to be a sufficient nexus between the federal land and the regulated activity. 222/
The hypothetical Denali Wolf Protection Act would amend federal law to the extent current federal law allows a wolf to be killed within Denali National Park and Preserve. 223/ With that important exception, perhaps a federal statute is theoretically unnecessary; it would appear the Secretary of the Interior has the power, constitutionally under the Property Clause, to promulgate regulations protecting a wolf that steps outside Denali National Park and Preserve. 224/ If the hypothetical act would be constitutional under the Property Clause, a hypothetical federal regulation with an extraterritorial reach for the protection of the Denali wolf (not inconsistent with federal law) could also pass constitutional muster. 225/
Looking back, the State of Alaska has recognized that federal agencies have extraterritorial regulatory power under the Property Clause. Harry R. Bader, a former assistant to the Director of the Alaska Department of Fish and Game, has provided an insider’s view of the Property Clause and wolves:
"A successful example of state and federal cooperation in the recognition of the extra-territorial interests held by the federal government is found in the Alaska wolf predator control plan promulgated by the Alaska Department of Fish and Game in 1993. The Wolf Management Plan included provisions for the creation of a buffer strip system around federal National Park lands in which no active predator control efforts would be implemented by the state, even on lands owned by the state or by Native corporations. The state of Alaska voluntarily sought and incorporated federal input in the development of its wolf control plan through the National Park Service, U.S. Fish and Wildlife Service, and the U.S. Bureau of Land Management. *** Had it not been for the very real possibility of federal intervention under the Property Clause, the Alaska wolf plan would not have accommodated Park interests in wolves." 226/
If the Property Clause’s extraterritorial reach had an in terrorem effect on the State of Alaska, the effect appears to have worn off. In February 2017, as Denali National Park and Preserve celebrated its 100th anniversary, the Alaska Board of Game unanimously rejected proposals to reinstate a no-wolf-kill buffer zone on nonfederal land next to the park. 227/
Federal land ownership throughout Alaska remains controversial, perhaps overshadowing the debate about the Denali wolf. 228/ In January 2017, the State of Alaska sued the federal government, challenging regulations issued by the National Park Service and the US Fish and Wildlife Service on hunting within Alaska’s National Preserves and National Wildlife Refuges. 229/ In a press release on the day the lawsuit was filed, Alaska’s Attorney General stated: “The regulations are about the federal government trying to control Alaskans’ way of life and how Alaskans conduct their business.” 230/
Recriminations also fly in the debate about the Denali wolf. Each side of the debate accuses the other of being irrational or nonscientific or biased. “This is not a biological issue,” according to one member of the Alaska Board of Game. “There’s no biological problem that I can find. This is purely an emotional issue.” 231/ The Game Board believes the number of wolves in Denali National Park and Preserve is actually on the rise. 232/ Denali wolf advocates counter that the Game Board is ignoring the science or “biological reality,” as one author put it, with respect to the foreseeable consequences of trapping or shooting even just one Denali wolf:
"The killing of an alpha or breeding animal can disrupt a wolf family (or pack, if you prefer). Sometimes those families completely disintegrate, with remaining members dispersing.
"In a great and sorrowful irony, the Toklat/East Fork wolves have been among those hardest hit by trappers and hunters in the boundary lands outside Denali National Park. The family is all but gone now, unless a lone remaining female finds a new mate, at least partly (if not largely) because key members were trapped or shot when they roamed beyond the park. People can disagree about the Toklat/East Fork’s legacy but there’s no argument it was Denali’s longest-lived and most intensely studied family unit of wolves. Its disintegration is a significant loss to those who believe such things matter." 233/
An outsider to the debate, Tom Clynes, wrote a February 2016 National Geographic article on Denali National Park and Preserve. “Until a few years ago a wolf that strayed near [a particular trapper’s] turf would have been off-limits,” he wrote. “But Denali’s most vulnerable wolf packs are at the center of some ugly politics.” 234/ In an interview for the article, the Commissioner of the Alaska Department of Fish and Game explained why the no-wolf-kill buffer zone on state land next to the park was eliminated:
"We increased it twice, but it was never big enough. . . . The last proposal was for another significant increase, and the feeling was that the federal government created that border and that’s the line. So we went back to a harder boundary." 235/
It may be the case that the State of Alaska is focused more on enforcing a hard border than on preserving the Denali wolf and opportunities for wolf viewing. 236/ In a February 2017 interview published before the Game Board’s unanimous rejection of proposals for reinstating a no-wolf-kill buffer zone on state land next to the park, the Board’s Chairperson observed: “with all the angst between the state and the federal guys right now, it’s a bad time for the state to give in to the federal request.” 237/
One thing is certain given current federal-state politics in Alaska. If Congress were to enact the hypothetical Denali Wolf Protection Act, the State of Alaska would file a lawsuit over the constitutionality of the act. For the reasons stated above, 238/ the act would likely be upheld.
200. “The Power of Congress,” supra note 54, at 5.
201. Id. at 125.
202. Cf. the Congressional Finding and Declaration of Policy section of the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. Sec. 1331 (2017).
203. Cf. the definitions section of the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. Sec. 1332 (2017). See infra notes 218–221 and accompanying text.
204. Cf. the strays-on-private-land section of the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. Sec. 1334 (2017).
205. Cf. the like section of the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. Sec. 1336 (2017).
206. Cf. the criminal provisions of the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. Sec. 1338 (2017).
207. Kleppe, supra note 64, at 546.
208. See supra note 176 and accompanying text.
209. Kleppe, supra note 64, at 536 (citations omitted); cf. supra notes 182–186 and accompanying text.
210. See supra note 176 and accompanying text.
211. See supra note 202 and accompanying text.
213. Camfield, supra note 8, at 526.
214. See supra note 208 and cf. supra notes 185–187 and accompanying text.
215. See supra note 190 and accompanying text, and see infra note 237 for a comment from the National Park Service expressing its opinion on what will happen if the hunters and trappers are not stopped.
216. Tom Clynes, “Denali: How Can Six Million Acres Not Be Enough?,” National Geographic Magazine, Jan. 2016 at 69.
217. See supra note 202 and accompanying text.
218. See supra note 193 and accompanying text.
219. See supra note 163 and accompanying text.
220. See supra note 203 and accompanying text.
221. Among Wolves, supra note 30, at 192.
222. See supra note 176 and accompanying text.
223. See supra note 43 and accompanying text.
224. In Brown, the defendant was convicted under federal regulations, and the Eighth Circuit held as follows: “The regulations prohibiting hunting and possession of a loaded firearm were promulgated pursuant to [the National Park Service Act] . . . and are valid prescriptions designed to promote the purposes of the federal lands within the [Voyageurs] national park.” Brown, supra 139, at 822–823 (citations omitted). The court also held that “these regulations are a proper delegation of congressional authority and founded upon a rational basis.” Id. at 823 n. 8. Cf. “Property Clause and Its Discontents,” supra 4, at 802 (noting that “the delegation of authority to the Forest Service to manage national forests remained well within Congress’s powers under the Property Clause”).
225. See id. and infra notes 226–228 and accompanying text. Congress has directed the Secretary of the Interior to issue such Denali National Park and Preserve regulations as the Secretary “may deem necessary or proper . . . , the said regulations being primarily aimed at  the freest use of the said park for recreation purposes by the public and  for the preservation of animals, birds, and fish for the preservation of natural curiosities and scenic beauties thereof.” 16 U.S.C. Sec. 351(2017); cf. 16 U.S.C. Sec. 355 (2017) (legal description of Denali National Park and Preserve, with extended boundaries) and 16 U.S.C. Sec. 355a (2017) (confirming statutes apply to extended boundaries).
226. Harry R. Bader, “Not So Helpless: Application of the U.S. Constitution Property Clause to Protect Federal Parklands from External Threats,” 39 Nat. Resources J. 193, 201–202 (1999) (emphasis added, footnotes omitted).
227. Zaz Hollander, “Game Board Rejects Denali Wolf Buffer,” Alaska Dispatch News, Feb. 26, 2017, at A11.
228. Zaz Hollander, “Feud With Feds Shadows Wolf Buffer Decision,” Alaska Dispatch News, Feb. 12, 2017, at A1 and A11.
229. Alaska v. Zinke, 3:17-CV-00013-JWS (D. Alaska 2017).
230. https://gov.alaska.gov/newsroom/2017/01/state-files-lawsuit-challenging-recent-federal-hunting-regulations/. In an order granting 15 conservation organizations leave to intervene as defendants, US District Judge John W. Sedwick presented the background to the case thusly:
"[A] state’s hunting regulations apply on federal lands only to the extent they are
compatible with federal mandates. Based on perceived incompatibilities, the FWS [US Fish and Wildlife Service] and NPS [National Park Service] objected to the application of the State’s regulations that authorized liberalized hunting practices—such as harvesting brown bears over bait; taking wolves and coyotes during denning season; expanding season lengths and increasing bag limits; and authorizing same-day airborne take of bears at registered bait stations—within Alaska’s National Preserves and Wildlife Refuges. The two agencies concluded that these predator-management practices conflict with their mandates to conserve natural diversity and maintain natural predator-prey relationships in National Preserves and Wildlife Refuges. They requested that the State exclude National Preserves and Wildlife Refuges from the state-authorized practices, but the State refused. Consequently, the FWS and NPS promulgated regulations prohibiting such hunting practices within Alaska’s National Preserves and Wildlife Refuges, which the State now challenges in this lawsuit." Alaska v. Zinke, 3:17-CV-00013-JWS (D. Alaska May 3, 2017 Order and Opinion) (footnote omitted).
231. Zaz Hollander, “Game Board Rejects Denali Wolf Buffer,” Alaska Dispatch News, Feb. 26, 2017, at A11.
232. See id. On the number of Denali wolves, see supra note 32.
233. Bill Sherwonit, “Board of Game Bias Isn’t Based on Science,” Alaska Dispatch News, Mar. 14, 2017, at B5 (Opinion Editorial).
234. Tom Clynes, “Denali: How Can Six Million Acres Not Be Enough?,” National Geographic Magazine, Feb. 2016 at 69.
236. Money is so tight within the various government branches of the State of Alaska that the state court system decided effective July 1, 2016, to save money by closing at noon on Fridays. Letter of Craig Stowers addressed to “Friends and Colleagues,” Chief Justice, Alaska Supreme Court (June 15, 2016) (on file with author) (wherein it is stated: “I want to remind everyone that the supreme court has decided to close all courts in the state every Friday at noon starting July 1 as part of our strategy to meet our reduced budget for the next fiscal year”). Yet in January 2017, the State of Alaska was so irritated over issues related to federal land within Alaska that the state commenced litigation, a potentially expensive exercise, against the federal government. See supra note 230, which mentions that fifteen conservation organizations were allowed to intervene in the litigation. Denali National Park and Preserve Superintendent Don Striker has been quoted as saying: “It’s good politics to hate the parks and to overlook all the good they’ve done for the state, especially economically.” Tom Clynes, supranote 234, at 82.
237. Zaz Hollander, “Feud With Feds Shadows Wolf Buffer Decision,” Alaska Dispatch News, Feb. 12, 2017, at A1 and A11. The Chairperson of the Alaska Board of Game is said to favor a land swap between the federal government and the State of Alaska to provide more protected area for the Denali wolf. “I think we should start working together,” the Chairperson is quoted as saying. “If you want to establish a buffer, let’s make an equitable trade.” Zaz Hollander, “Game Board Rejects Denali Wolf Buffer,” Alaska Dispatch News, Feb. 26, 2017, at A11. In its 2017 proposal to the Game Board for a buffer zone on nonfederal land to protect the Denali wolf, the National Park Service included the following commentary:
"WHAT WILL HAPPEN IF NOTHING IS DONE? Wolves from the most commonly viewed packs will continue to be trapped and hunted just outside of park boundaries, in places as close to four miles from the park road. This will result in continued disruption of wolf packs in the areas where wolves are seen by Alaska’s visitors, a decrease in wolf numbers along the park road, possible loss of packs that frequent the park road . . . and decreased opportunities for wolf viewing." https://www.nps.gov/dena/learn/nature/upload/Wolf-Buffer-Proposal-2017.pdf
It is said that in 2010, visitors to Denali National Park and Preserve had a 45 percent chance of spotting a wolf; as of 2015, the percentage is said to be 5 percent. See supra notes 35–36 and accompanying text. Perhaps the federal government’s use, if any, of the Property Clause to protect the Denali wolf will be in direct proportion to there being fewer wolves seen by the nearly 600,000 annual visitors to the park. See supra note 46 and accompanying text. And it may be the case that until the Denali wolf is protected through the federal government’s exercise of the extraterritorial reach of the Property Clause, debate about protecting the Denali wolf under Alaska law will be controlled by irritation over federal land ownership in Alaska.
238. See supra notes 210–222 and accompanying text.