32 ELR 20438 -- United States v. Kornwolf

United States v. Kornwolf

No. 01-2394 (276 F.3d 1014) (UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT January 16, 2002)

ELR Digest

The court holds that the Bald and Golden Eagle Protection Act's (BGEPA's) and the Migratory Bird Treaty Act's (MBTA's) prohibition on the sale of eagle feathers did not cause an unconstitutional taking of an individual's property. The individual lawfully acquired Native American artifacts containing eagle feathers prior to the effective dates of the BGEPA and the MBTA. Subsequently, the individual was arrested and entered a conditional plea of guilty to four counts of illegally selling Native American artifacts containing eagle feathers, but he reserved the right to withdraw his plea if, on appeal, the BGEPA and the MBTA were found to effect unconstitutional takings. However, the court first holds that the case is controlled by the U.S. Supreme Court's opinion in Andrus v. Allard, 444 U.S. 51, 9 ELR 20791 (1979), in which the Court upheld the constitutionality of the BGEPA and the MBTA against a Fifth Amendment takings claims. In Allard, the Court held that the simple prohibition of the sale of lawfully acquired bird feathers does not effect a taking in violation of the Fifth Amendment. Further, the individual's case is indistinguishable from Allard because Allard encompassed bird feathers acquired before the effective dates of the BGEPA and the MBTA. Moreover, the individual's receipt and retention of payment for the artifacts dictates that the BGEPA's and the MBTA's prohibition against the sale of eagle feathers is less likely to be deemed a taking without just compensation. In addition, although Allard did not involve a criminal prosecution, the Court clearly envisioned the BGEPA's and the MBTA's enforcement within a criminal context.

The full text of this opinion is available from ELR (6 pp., ELR Order No. L-431).

[Counsel not available at this printing.]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]