United States v. North Dakota

A1-79-62 (D.N.D. June 4, 1980)

The court grants summary judgment to the United States in a suit for a declaratory judgment that the government's acquisition of a permanent waterfowl easement under § 4 of the Migratory Bird Hunting Stamp Act was a valid conveyance notwithstanding potential conflicts with other federal and state statutes. The court points out that although state consent by law and approval of the governor are required by the Migratory Bird Conservation Act, § 4 of the former Act explicitly waives these limitations for acquisitions of small waterfowl production areas. In addition, the court holds that North Dakota statutes restricting federal acquisition of wetland easements are preempted by provisions of the Migratory Bird Hunting Stamp Act. Since the United States has preempted the field of regulating migratory birds by valid treaties with Great Britain and Mexico, the court concludes that any state law that conflicts with the federal scheme cannot stand.

Counsel for Plaintiff
Lynn E. Crooks, Ass't U.S. Attorney
219 Federal Bldg. & U.S. Cthse., PO Box 2505, Fargo ND 58108
(701) 237-5771

James W. Moorman, Ass't Attorney General; John E. Lindskold
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Counsel for Defendant
Murray G. Sagsveen, Attorney General
State Capitol, Bismarck ND 58505
(701) 224-2210

[10 ELR 20785]

Van Sickle, J.:

Memorandum and Order

By its complaint the Plaintiff challenges various North Dakota statutes which it contends are void under the supremacy clause of the United States constitution. Jurisdiction is asserted under 28 U.S.C. § 1345.

In essence, the Plaintiff seeks a judicial declaration that a permanent waterfowl easement acquired by it under the provisions of § 4 of the Migratory Bird Hunting Stamp Act (16 U.S.C. § 718d(c)) is a valid conveyance of an interest in real property under federal law and vests in the United States the rights therein stated, notwithstanding that the conveyance of such a property right is not permitted under §§ 20.1-02-18, 20.1-02-18.1, 20.1-02-18.2, and 47-05-02.1 of the North Dakota Century Code. 28 U.S.C. § 2201.

On March 17, 1980, oral argument was presented on the parties' cross motions for summary judgment. At that time, and at the suggestion of the Court, the parties agreed to reduce certain matters to a written stipulation; this document was filed March 25. That stipulation provides, inter alia, that the Court has been provided all evidentiary material necessary to resolve the cross motions for summary judgment and that no further evidence will be submitted in connection with the issues raised by Plaintiff's complaint; that the parties agree that the issues raised in Plaintiff's complaint and those raised by the Defendant in its counterclaim may be considered separately by the Court and that those matters raised by the counterclaim may be considered separately by the Court and that those matters raised by the counterclaim will not be considered for disposition until after such times as the Plaintiff's reply or other proper response to the merits of the counterclaim is due; and that the parties reserve the right to file final briefs with regard to the issues presented by Plaintiff's complaint. (Final briefs concerning the complaint have been filed; Plaintiff has responded to Defendant's counterclaim with a motion to dismiss for lack of jurisdiction. By its counterclaim, the Defendant seeks injunctive relief from Plaintiff's alleged threat to utilize its power of eminent domain in the acquisition of certain lands.)

So much of § 718d, Title 16, United States Code, as is here applicable is set forth:

§ 718d. Disposition of receipts from sale of stamps. All moneys received for such stamps shall be accounted for by the Postal Service or the Department of the Interior, whichever is appropriate, and paid into the Treasury of the United States, and shall be reserved and set aside as a special fund to be known as the migratory bird conservation fund, to be administered by the Secretary of the Interior. All moneys received into such fund are appropriated for the following objects and shall be available therefor until expended:

(a) . . . . (not pertinent) . . . .

(b) Except as authorized in subsection (c) of this section, the remainder shall be available for the location, ascertainment, and acquisition of suitable areas [10 ELR 20786] for migratory bird refuges under the provisions of the Migratory Bird Conservation Act and for the administrative costs incurred in the acquisition of such areas. (Emphasis supplied.)

(c) The Secretary of the Interior is authorized to utilize funds made available under subsection (b) of this section for the purposes of such subsection, or of this subsection, to acquire, or defray the expense incident to the acquisition by gift, devise, lease, purchase, or exchange of, small wetland and pothole areas, interests therein, and rights-of-way to provide access thereto. Such small areas, to be designated as "Waterfowl Production Areas," may be acquired without regard to the limitations and requirements of the Migratory Bird Conservation Act, but all of the provisions of such Act which govern the administration and protection of lands acquired thereunder, except the inviolate sanctuary provisions of such Act, shall be applicable to areas acquired pursuant to this subsection. (Emphasis supplied.)

As stated above, the gravamen of Plaintiff's complaint is directed to the acquisition of an interest in real property under subsection 718d(c) of Title 16, U.S.C.

Defendant asserts that any acquisition by the Plaintiff under § 718d(c) of Title 16, U.S.C., is limited by and conditioned upon certain provisions of the Migratory Bird Conservation Act, § 715 et seq., Title 16, United States Code. Specifically, the Defendant argues that § 715f, which provides that

No deed or instrument of conveyance shall be accepted by the Secretary of the Interior under sections 715 to 715d, 715e, 715f to 715k and 715l to 715r of this title unless the State in which the area lies shall have consented by law to the acquisition by the United States of lands in that State.

and § 715k-5, which states, in pertinent part, that

. . . No land shall be acquired with moneys from the migratory bird conservation fund unless the acquisition thereof has been approved by the Governor of the State or appropriate State agency.

apply as limitations upon an acquisition attempted under § 718d(c). Further, the Defendant contends that since the State of North Dakota has given only a conditional consent to acquisitions by the United States for migratory bird reservations (20.1-02-18, NDCC [N.D. CENT. CODE § 20.1-02-18]); that certain procedural steps must be followed in making such acquisition (20.1-02-18.1, NDCC [N.D. CENT. CODE § 20.1-02-18.1]); that a lease, easement or other servitude upon areas acquired by the United States with moneys from the migratory bird conservation fund for use as waterfowl production areas, wildlife refuges, or for other wildlife purposes terminates upon the death of the landowner or upon change of ownership, and that failure by the Plaintiff to comply with this provision nullifies North Dakota's consent under 20.1-02-18 (20.1-02-18.2, NDCC [N.D. CENT. CODE § 20.1-02-18.2]); and that no easement or other servitude on real property which becomes binding after July 1, 1977, shall exceed ninety-nine years in duration (47-05-02.1, NDCC [N.D. CENT. CODE § 47-05-02.1]), and that since these state statutory provisions have not or will not be complied with or accepted by the Plaintiff, no valid acquisition of "small wetland and pothole areas" under § 718d(c) can be made by the United States.

The provisions requiring consent by the State and approval of the Governor (or appropriate State agency) are found in the language of the Migratory Bird Conservation Act, Title 16, U.S.C., § 715 et seq. No similar provision is to be found in the Migratory Bird Hunting Stamp Act, Title 16, U.S.C. et seq. The fact that acquisitions made under both the Migratory Bird Conservation Act (§ 715 et seq.) are ultimately paid for from the same migratory bird conservation fund does not nullify the explicit exception incorporated in § 718d(c) that small, waterfowl production areas "may be acquired without regard to the limitations and requirements of . . . ." § 715 et seq. (Emphasis supplied). It is obvious that State and gubernatorial consent are encompassed within the "limitations and requirements" therein addressed. Therefore, I conclude that neither State nor gubernatorial consent is a prerequisite for a valid a acquisition by the United States of small, waterfowl production areas under § 718d(c) of Title 16, United States Code.

Article II, § 2 of the Constitution of the United States expressly delegates the treaty making authority to the President, by and with the consent of the Senate. Article VI, Clause 2 of the Constitution provides, inter alia, that all treaties made under the authority of the United States shall be the supreme law of the land, any state law to the contrary notwithstanding.

By treaties concluded with Great Britain on August 16, 1916 (39 Stat. 1702) and Mexico on February 7, 1936 (50 Stat. 1311) the United States preempted the field of regulating migratory birds. Subsequent Congressional enactments (§ 703 et seq., Title 16, United States Code) have delineated the United States' role in the protection and regulation of those creatures. The validity of the treaty with Great Britain, and statutes promulgated thereunder, has been upheld. Missouri v. Holland, 252 U.S. 416 (1920).

A state law which either frustrates the purpose of federal legislation or impedes the operation of the federal agency charged with superintending a preempted field cannot stand. Nash v. Florida Industrial Commission, 389 U.S. 235 (1967). Even though a federal statute does not specifically exclude state legislation, it nevertheless overrides those state laws with which it conflicts. Chicago-Midwest Meat Association v. City of Evanston, 589 F.2d 278 (7th Cir. 1978), cert. denied 442 U.S. 946

Under the circumstances of this case, I conclude that the challenged North Dakota statutes, insofar as they conflict with the federal scheme for land acquisitions under § 718d(c) of Title 16, United States Code, stand as an obstacle to the accomplishment and execution of valid purposes and objectives of Congress. For that reason, and to that extent, they must yield to the overriding federal law.

Turning now to the matter of the pending motion to dismiss Defendant's counterclaim, I find no basis for subject matter jurisdiction. Two of the jurisdictional grounds advanced by Defendant — the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and the Declaratory Judgment Statute, 28 U.S.C. §§ 2201 & 2202 — are purely procedural and remedial in nature, and provide no independent jurisdictional basis in this Court. The third ground advanced, the Federal Question Statute (28 U.S.C. § 1331) merely defines the general parameters of federal district court jurisdiction. Standing alone, § 1331 does not constitute a consent to suit against the United States.

For the reasons above stated, it is

ORDERED that Defendant's motion for summary judgment be, and the same hereby is, in all things, denied. It is further

ORDERED that Plaintiff's motion for summary judgment be, and the same hereby is, in all things, granted. And it is further

ORDERED that Plaintiff's motion to dismiss Defendant's counterclaim, together with the related motion for preliminary injunction be, and the same hereby is, in all things, granted.

Counsel for the Plaintiff will forthwith prepare and submit an appropriate form of judgment in conformity herewith.