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Allard v. Andrus

Citation: 9 ELR 20787
No. No. 75-W-1000, (D. Colo., 06/07/1978)

The court invalidates Interior Department regulations issued pursuant to the Eagle Protection Act and the Migratory Bird Treaty Act which prohibit the sale of parts of birds protected by the two statutes even though they were obtained prior to enactment of the statutes. Plaintiffs are dealers in American Indian artifacts which were made from the feathers of various birds prior to enactment of the statutes. Plaintiffs sought to enjoin application of the regulations, which allow possession of bird parts acquired before the effective dates of the Acts but prohibit commercial transactions, on the ground that the regulations deprived them of property rights without due process. Defendants justified the prohibition against commercial activity in such items regardless of when the bird parts were obtained on two grounds. Because it is impossible to determine the age of feathers, artifacts that preexisted the statutes thus cannot in practice be distinguished from recently created ones. In addition, the statutes expressly permit possession but do not mention sale of preexisting parts. The court concludes that application of the regulations to plaintiffs' artifacts has a destructive and confiscatory effect on their pre-existing property rights, in violation of the Fifth Amendment. Thus, the regulations are void as applied to bird parts legally obtained prior to the effective dates of the statutes.

Counsel for Plaintiffs
John P. Akolt, III
Akolt, Dick & Akolt
1510 Lincoln Center Bldg., 1660 Lincoln St., Denver CO 80203
(303) 861-2480

Counsel for Defendants
Joseph F. Dolan, U.S. Attorney; James W. Winchester, Ass't U.S. Attorney
C-330 U.S. Courthouse, Denver CO 80294
(303) 837-2087

Before BARRETT, Circuit Judge, WINNER, Chief District Judge, and MATSCH, District Judge.