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Andrus v. Allard

Citation: 9 ELR 20791
No. No. 78-740, 444 U.S. 51/13 ERC 2057/(U.S., 11/27/1979) Rev'd

The United States Supreme Court reverses a lower court's decision, 9 ELR 20787, invalidating Interior Department regulations which prohibit the sale of parts of birds obtained before they came under the protection of the Migratory Bird Treaty Act and the Eagle Protection Act. The Court rules that both statutes contemplate regulatory prohibition of sales of parts of protected birds no matter when those birds were originally taken. The Eagle Protection Act's specific exemption of only "possession or transportation" of preexisting bird parts from the general statutory ban on takfing, possession, sale, or transportation of protected birds creates an inference that the sale of preexisting parts was not to be exempted. The Court notes that a prohibition against the sale of preexisting parts is consonant with the Act's protective purposes given that there is no sure way to determine whether particular feathers were taken before or after the Act became effective. The general prohibition in the Migratory Bird Treaty Act on its face forbids transactions in all protected bird parts. No exception for the sale of preexisting parts can be found in the statutory language or implied from it. The absence of such an exception implies that the Act was intended to embrace the traditional conservation technique of banning transactions in protected birds, whenever taken. The lower court also erred in concluding that the regulatory prohibition against sales of preexisting bird parts violated plaintiffs' Fifth Amendment rights by depriving them of the opportunity to earn a profit from Indian artifacts containing such bird parts. The regulations do not amount to a taking of plaintiffs' property, the Court holds, because while they reduce the expectation of future profits, they do not compel the surrender of these items nor impose any physical restraint upon them. Plaintiffs retain the rights to possess, transport, donate, or devise the artifacts and may still be able to derive economic benefit by exhibiting them for an admission charge.

Counsel for Appellants
Harriet S. Shapiro, Ass't Solicitor General; Wade H. McCree, Jr., Solicitor General
Department of Justice, Washington DC 20530
(202) 633-4282

James W. Moorman, Ass't Attorney General; Robert L. Klarquist, Edward J. Shawaker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

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

THE CHIEF JUSTICE concurs in the judgment of the Court.