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United States v. Kepler

ELR Citation: 6 ELR 20340
Nos. No. 75-2082, 531 F.2d 796/(6th Cir., 03/17/1976)

Defendant was convicted, inter alia, of violating the Endangered Species Act of 1973 by transporting a cougar and a leopard from Florida to Kentucky in December 1974 without the required permit. Seizure of his animals by agents of the Department of Interior and their interference with his attempted sale of them did not effect an unconstitutional taking of his property under the Fifth Amendment since the Act does not prohibit all sales of protected wildlife, but only those in interstate and foreign commerce. Moreover, the Act permits transportation and sale when approved by the Secretary of Interior for scientific purposes or to enhance survival of the affected species. Nor is there merit to defendant's contention that he was holding the animals for a proper purpose on December 28, 1973, when the Act came into effect. Wildlife held in the course of "commercial activity" is explicitly excluded from exemption under the Act, and there was evidence from which the jury could infer that defendant's hauling of the animals was in the course of such activity. The challenged conviction is affirmed.

Counsel for Defendant
Coleman D. Moberly
Moberly Building
London KY 40741
(606) 864-2717

Counsel for Plaintiff
Eldon L. Webb, U.S. Attorney
William D. Kirkland, Asst. U.S. Attorney
P.O. Box 1490
Lexington KY 40501
(606) 252-2312

Before: EDWARDS and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.