Allard v. Andrus

No. 75-W-1000 (D. Colo. June 7, 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.

[9 ELR 20787]

MATSCH, District Judge

The plaintiffs are owners of, dealers in, and appraisers of American Indian artifacts which include the feathers of various birds. These artifacts all existed before the enactment of federal laws which protect the species of birds whose feathers were used in creating the artifacts. Two of the plaintiffs have been prosecuted for the sale or offering for sale of such preexisting artifacts.

The defendants are responsible for enforcing the Migratory Bird Treaty Act, 16 U.S.C. § 703, et seq., the Eagle Protection Act, 16 U.S.C. § 668, et seq., and the regulations issued thereunder, which prohibit, inter alia, the sale of birds or parts of birds which are protected by these statutes. The enforcement policy followed by the defendants is to prohibit commercial activity involving parts of protected birds regardless of the date the parts were obtained. Plaintiffs contend that the defendants' application of these statutes and regulations to preexisting artifacts restricts their ability to engage in a lawful occupation and destroys a valuable property right, all in violation of the constitutional guaranty of due process. On this basis, they have sought declaratory and injunctive relief.

Jurisdiction is provided by 28 U.S.C. § 1331. A three-judge court was convened under 28 U.S.C. §§ 2282, 2284, because this complaint was filed before August 12, 1976. The case is ready for final disposition on cross motions for summary judgment.

The Migratory Bird Treaty Act was passed in 1918 and amended in 1936 and 1974. This statute makes it unlawful to hunt, capture, kill, possess, sell or transport any migratory bird, part, or product including birds or their parts, of any species protected by conventions between the United States and foreign countries. 16 U.S.C. § 703. Neither the original Act nor the amendments make any express reference to birds or parts of birds lawfully taken and possessed before the effective date of the protective legislation.

The United States Fish and Wildlife Service of the Department of the Interior is responsible for the enforcement and administration of the Migratory Bird Treaty Act. In 1974, the Fish and Wildlife Service issued the following regulation:

Migratory birds, their parts, nests, or eggs, lawfully acquired prior to the effective date of Federal protection under the Migratory Bird Treaty Act (16 U.S.C. 703-711) may be possessed or transported without a Federal permit, but may not be imported, exported, purchased, sold, bartered, or offered for purchase, sale, trade, or barter, and all shipments of such birds must be marked as provided by 18 U.S.C. § 44 and § 14.81 of this subchapter: Provided, That no exemption from any statute or regulation shall accrue to any offspring of such birds.

50 C.F.R. § 21.2(a). The validity of this regulation prohibiting the sale of bird parts acquired by the owner before the effective date of the Act is in issue in this case.

The Eagle Protection Act was enacted in 1940 and amended in 1959, 1962 and 1972. Originally it protected the bald eagle with the same prohibitions as those in the Migratory Bird Treaty Act. Unlike that statute however, the Eagle Protection Act expressly permits the possession and transportation of eagles and eagle parts lawfully taken prior to its effective date. 16 U.S.C. § 668. The 1962 Amendment extended protection to the golden eagle. Nothing in the Act itself or the amendments mentions the sale of pre-act eagle parts.

In 1974, a regulation prohibiting the sale of eagle parts while continuing to permit their possession and transportation was adopted. 50 C.F.R. § 22.2. That regulation has also been challenged in this case.

Plaintiffs claim that these two statutes could not have been intended to apply to existing native art, and that to extend them by the challenged regulations results in a denial of property rights without due process of law and is not required to achieve the [9 ELR 20788] apparent purpose of protecting living birds.

The defendants contend that it is impossible to distinguish feathers by age, that living birds are protected by eliminating any market for dead birds, that the Eagle Protection Act explicitly permitted only the possession and transportation of preexisting bird parts and, inferentially, prohibited their sale, and that the statutes are not retrospective in their application because the plaintiffs must do something subsequent to the enactment date to violate them.

The application of these acts to the plaintiffs' artifacts has a destructive and confiscatory effect on pre-existing property rights in these items. The questioned regulations have destroyed the right to sell them. Assuming that there is no "scientific method" for detecting the age of feathers, these statutes may be enforced by less drastice regulatory procedures, including affidavits of acquisition, registration by business records or marking, and expert examination. The defendants have failed to show any efforts to establish such a registration system.

It has long been recognized that in the absence of a legislative prohibition, the capture of birds creates a property right in them. Shouse v. Moore, 11 F. Supp. 784 (E.D. Ky. 1935). The feathers of such legally captured birds may be converted into aigrettes or other ornaments, and in such "harmless, useful, and valuable property there is a vested right of possession, use, enjoyment, and sale — a liberty of action, of which owners cannot be arbitrarily deprived without compensation." United States v. Fuld Store Co., 262 F. 836, 837 (D. Mont. 1920).

The protection of such property rights in legally taken birds or feathers and the items produced with them is precisely what caused federal courts on three different occasions to deny applicability of the Migratory Bird Treaty Act to birds or parts lawfully taken prior to its enactment. In United States v. Fuld Store Co., supra, a two count information, charging the defendant with possession of and offering for sale aigrettes of heron feathers which it had legally owned before the Migratory Bird Treaty Act was passed, was dismissed for failureto state a crime. The court found that to rule otherwise would result in depriving the defendant of pre-existing property rights to which its ownership of the articles entitled it:

Before the act, herons were lawfully killed and their plumage lawfully possessed and sold. Much of this plumage had been converted into aigrettes, artistic, beautiful, useful, and ornamental — harmless and valuable. They had entered into the domain of commerce, and the stock of private property, and were possessed by many persons. An intent on the part of Congress to virtually outlaw and destroy such property ought not to be assumed, unless very clear and the only reasonable construction of the act; for it is very doubtful if Congress has any such power.

. . . [S]uch construction, denouncing as a crime possession and sale of this theretofore lawful private property, would expose the act to serious question as an ex post facto law within constitutional inhibition. . . . All this can be avoided by construction that the act relates only to birds and parts of birds killed subsequent to the act, a permissible and more reasonable construction and in principle always to be preferred to avoid grave doubts of the validity of the law otherwise. (262 F. at 837-38)

Within five years of Fuld, two other federal cases were decided upon the same reasoning. In re Informations Under Migratory Bird Treaty Act, 281 F. 546 (D. Mont. 1922); United States v. Marks, 4 F.2d 420 (S.D. Tex. 1925).

The defendants seek to avoid these decisions by arguing that they were "either wrongly decided or have been overruled by the expansion of the interstate commerce power of the federal government." While it is true that the national government has extended its regulation of interstate commerce, the protection of private property by the due process clause of the Fifth Amendment to the United States Constitution is still very much intact and it must be assumed that the Congress remains respectful of it.

Two other cases offer persuasive authority for not applying these statutes to preexisting artifacts and should briefly be mentioned.In an unpublished opinion in 1975, the Court of Appeals, Tenth Circuit, said that a defendant in a criminal case charging a violation of the Migratory Bird Treaty Act could assert and attempt to prove, as a defense, that the feathers or birds were acquired before the statute. United States v. Aitson (No. 74-1588, July 21, 1975).

Considering legislation almost identical to the Migratory Bird Treaty Act, the New York Court of Appeals in A.E. Nettleton Co. v. Diamond, 315 N.Y.Supp.2d 625, 264 N.E.2d 118 (1970), appeal dismissed, 401 U.S. 969 (1971), held that the New York Mason Act did not apply to skins, hides or products therefrom acquired in this country prior to the effective date of the Act, providing that their receipt could be properly documented by U.S. Customs records or authentic inventory or shipment records.

The defendants have cited Delbay Pharmaceuticals v. Department of Commerce, 409 F. Supp. 637 (D. D.C. 1976), interpreting the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq., to prohibit the sale of animal parts legally held prior to the enactment [9 ELR 20789] date.There the plaintiff manufactured a prescription drug called Lotrimin, containing spermaceti, a waxy substance derived from the sperm whale. Plaintiff challenged the seizure of his inventory of spermaceti, including all Lotrimin containing spermaceti, on the ground that it was legally brought into the United States before the enactment of the 1973 Act. Upholding the seizure, the district judge said that the Act's strong enforcement policy required shutting off any interstate market for spermaceti which could encourage the illegal taking of sperm whales.

The conclusion in Delbay was based on a finding "that Congress intended to extend the prohibitions of the 1973 Act to their widest possible reach." 409 F. Supp. at 642. Congress' intent in this regard was no doubt based on a concern for protecting wildlife whose very existence is threatened. As evidence of this desire to restrict the taking of these animals "in the broadest possible terms," see H.R. Rep. No. 412, 93d Cong., 1st Sess. at 15, the Act provides that even an unlisted species may be treated as an endangered species if the resemblance between the two is so close such that "enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species." 16 U.S.C. § 1533(e).

Unlike the Endangered Species Act, the statutes in question here include game birds, which plaintiffs point out are legally killed in great numbers each year, and also include such birds as grackles and blackbirds, which the Department of the Interior itself has killed by the millions to protect livestock and agriculture in the southeastern United States. See Public Law 94-207, 94th Cong., February 4, 1976. Furthermore, there is no indication in the Migratory Bird Treaty Act, the Eagle Protection Act, or the legislative history that Congress intended these statutes to be enforced "in the broadest possible terms." Thus, Delbay's heavy reliance on Congress' reaction to the practical circumstances presented by endangered and threatened species is a basis for distinguishing the holding in that case from the issue presented here.

It is unnecessary for us to distinguish the court's treatment in Delbay of the due process claim raised in that case. It is worth noting, however, that in dismissing the plaintiff's Fifth Amendment claims, Judge Gasch stated that the Supreme Court has consistently upheld the power of Congress "to exclude from the channels of interstate commerce those products whose movements between the states the Congress deems harmful to the national welfare." (409 F. Supp. at 644) From our review of the cases, this is an accurate statement with respect to statutory prohibitions which "exclude" property from moving in commerce in the sense of limiting its beneficial use, e.g., Reid v. Colorado, 187 U.S. 137 (1902) [upholding Colorado's law prohibiting the introduction of diseased livestock into the state without first complying with certain quarantine protection measures], or with respect to laws which prohibit the transportation in interstate commerce of articles which are themselves considered injurious to the public, e.g., Lottery Case, 188 U.S. 321 (1902) [affirming Congress' power to prohibit the interstate carriage of lottery tickets], or laws which restrict the interstate shipment of articles which, though harmless and useful in themselves, were produced under conditions which are injurious to the public, e.g., United States v. Darby, 312 U.S. 100 (1940) [prohibition of the shipment of lumber produced under substandard labor conditions held within constitutional authority of Congress]. We would submit, however, that the Supreme Court has never upheld the power of Congress to deprive a person forever of the right to dispose of his private property through commercial channels where such property was legally acquired — in contravention of no public policy — and where the property is not only harmless in itself, but also has intrinsic value.

The Delbay decision was never appealed. Shortly after it, the Department of Commerce returned the seized material to Delbay and Congress passed an Amendment to the Endangered Species Act, the purpose of which was "to allow for the limited disposal of pre-Act, legally-obtained endangered species parts and products." H.R. Rep. No. 94-823, 94th Cong., 2d Sess. 3 (1976), U.S. Code Cong. & Admin. News, p. 1686. In view of what Congress deemed "a severe economic hardship . . . inflicted upon those individuals who were engaged in legitimate commercial activities and who were holding large inventories prior to the passage of the Act," Id. at 1686-87, this amendment provided a three-year exemption allowing pre-act scrimshaw and sperm whale oil (which includes spermaceti) to be sold commercially. Public Law 94-359, July 12, 1976. The legislative history of this amendment shows that the Secretary of the Interior, a defendant in this case, fully supported these exemptions and considered it a matter of "great concern [that] individuals legally possessed, prior to enactment of the 1973 Act, parts or products of endangered species for the purpose of sale or for other activities of a commercial nature." Letter from Nathaniel Reed to Carl B. Albert, Sept. 30, 1975, reprinted in H.R. Rep. No. 94-823, 94th Cong., 2d Sess. 8 (1976), U.S. Code Cong. & Admin. News 1976, p. 1691.

Similar wildlife legislation has also recognized the [9 ELR 20790] need for protecting preexisting property rights in the products of protected animals. Regulations issued pursuant to the Marine Mammal Protection Act, 16 U.S.C. § 1361 et seq., exempt from the Act's coverage parts and products of marine mammals taken pre-act:

Exempted marine mammals or marine mammal products.

(a) The provisions of the Act and these regulations shall not apply:

(1) To any marine mammal taken before December 21, 1972, or

(2) To any marine mammal product if the marine mammal portion of such product consists solely of a marine mammal taken before such date.

50 C.F.R. § 18.25. To further these exemptions, 50 C.F.R. § 18.14 provides for a registration process so that legitimately taken marine mammal items can be distinguished from those which are illegal. We believe that such a process is an appropriate procedure for balancing the Congressional intent of preserving wildlife with due regard for the vested property rights of individuals. The Constitution would also seem to require it. Shelton v. Tucker, 364 U.S. 479, 488 (1960).

These precedents favor a construction of these acts which would permit the plaintiffs to sell their pre-existing artifacts. No case has ever heldthat either the Migratory Bird Treaty Act or the Eagle Protection Act apply to property which includes parts of protected birds lawfully existing prior to the enactment dates. There is no indication of any legislative intention that either statute should be so applied. In none of the amendments to these statutes did Congress choose to include pre-act birds or products within the proscriptive terms, despite the existing judicial constructions that the acts applied only to birds and parts thereof taken after Federal protection. We must assume that Congress was acquainted with these cases when the amendments were passed, and either concurred with them, or decided that a retrospective application of these laws would not be permissible under the Constitution.

We are also mindful of the canon of statutory construction that when a statute is ambiguous, "construction should go in the direction of constitutional policy." United States v. Johnson, 323 U.S. 273, 276 (1944). There are grave doubts whether these two acts would be constitutional if they were construed to apply to pre-act bird products. In such a case, "[w]hen one admissible construction will preserve a statute from unconstitutionality and another will condemn it, the former is favored even if language, . . . and arguably the legislative history point somewhat more strongly in another way." Regional Rail Reorganization Act Cases, 419 U.S. 102, 134 (1974), quoting 384 F. Supp. 895, 944 (Special Court, 1974). In short, as stated by Mr. Chief Justice Hughes, "if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62 (1931).

After reviewing the materials in this case, we are of the opinion that interpreting the Migratory Bird Treaty Act and the Eagle Protection Act to apply only to birds and products therefrom which the owner acquired after the statutes were enacted, is not only a "fairly possible" construction of the acts, but the only possible one.

Having decided that the prohibitions in these acts against commercial activity involving parts of protected birds are not applicable to preexisting, legally-obtained bird parts or products therefrom, we must declare the interpretive regulations, 50 C.F.R. §§ 21.2(a) and 22.2(a), void as unauthorized extensions of the Migratory Bird Treaty Act and the Eagle Protection Act and violative of the plaintiffs' Fifth Amendment property rights.

Although the sale of plaintiffs' pre-act feathers may not, therefore, be prohibited, the agency may adopt reasonable means for the purpose of identifying and distinguishing pre-act feathers from those of illegally taken birds. An exemption and registration plan similar to those established under other wildlife conservation statutes, discussed supra, is an obvious possibility.

Accordingly, it is

ORDERED, that the Clerk of this Court shall enter judgment for the plaintiffs declaring the subject regulations to be invalid and unenforceable as against the plaintiffs' property rights in feathers and artifacts owned before the effective date of the subject statute and enjoining the defendants from any interference with the exercise of such rights, including the rights of sale, barter or exchange.