Comments on FWS’s Proposal

Migratory Bird Permits; Definition of ‘Hybrid’ Migratory Bird

Docket No. FWS-R9-MB-2011-0060; 91200-1231-9BPP

To begin, this proposal of attempting to bring hybrids under the authority of the U.S. Fish & Wildlife Service (FWS) serves no conservation purpose. In other words, it does nothing for wild raptors, which was the purpose and only justification for bringing raptors under the authority of the MBTA.

The point made in the conclusion of this FWS proposal, that law enforcement efforts would be more burdensome due to the difficulty in identifying purebred versus hybrid raptors, is irrelevant. The rights and liberties of citizens are of greater importance than law enforcement convenience[1] given the fact that the very purpose of law enforcement efforts is to protect the rights and liberties of citizens. Also, now that we have markers, in the form of leg bands, that can identify purebreds from hybrids, there is no justification in this assertion. In addition, the number of falconry related infractions are so low as to have no impact on wildlife populations, especially since the population of falconers is so small. Ash[2] provides:

… It is very interesting to note that there are no violations in over five years pertaining to smuggling, soliciting, forgery, false records, conspiracies, export violations, or any CITES violations. Indeed there were no cases involving selling raptors, and no cases involving Europe, Asia, or the Middle East.

… [T]he proper conclusion is that the falconry community works hard to understand the letter, spirit, and interpretation of the law and there is minimal illegal activity, perhaps only well-intended individuals misinterpreting regulations, to catch.

With onerous regulations constraining falconers’ activities, one must ask what is the intent of the Law Enforcement Division of FWS? There is neither any public good nor any conservation benefits derived from hybrids’ inclusion as birds under MBTA authority.

In the summary of this FWS proposal it provides:

At present, the definition applies only to hybrids of two species on the list of migratory birds at 50 CFR 10.13. We propose to revise the definition to make it clear that it applies to the offspring of any species listed at 50 CFR 10.13.

FWS is incorrect in this assertion given the amendment Congress provided in 2004 in reaction to the Mute Swan case Hill v. Norton, 275 F.3d 98, D.C. Cir., 2001.[3] The Amendment provides:

(1) In general. This Act applies only to migratory bird species that are native to the United States….

(2) Native to the United States defined.

(A) In general. Subject to subparagraph (B), … the term “native to the United States…” means occurring in the United States … as the result of natural biological or ecological processes.

(B) Treatment of introduced species. For purposes of paragraph (1), a migratory bird species that occurs in the United States … solely as a result of intentional or unintentional human-assisted introduction shall not be considered native to the

U.S. …. [Emphasis added]

The proposal then states:

The definition of “migratory bird” in 50 CFR 10.12 is: “Migratory bird means any bird, whatever its origin and whether or not raised in captivity, which belongs to a species listed in section 10.13 or which is a mutation or a hybrid of any such species.

This is in direct conflict with Congresses’ 2004 amendment and its intent. This provision of 50 CFR 10.12 conflicts with 16 U.S.C. section 703(b), which overrides the CFR making this provision of 10.12 impermissible.

The proposal also provides:

If the Service did not have authority under the MBTA to regulate hybrids, then it would have no authority over release of hybrids….

This is incorrect. Just above this statement is another statement that contradicts this.

… (16 U.S.C. 701): The object and purpose of this Act is … to regulate the introduction of American or foreign birds or animals in localities where they have not heretofore existed….

This provides FWS with the authority to prohibit the intentional permanent release of exotics or hybrids since these may interfere with indigenous species’ reproductivity and habitat. There is no need for FWS to regulate the personal use of these birds in order to prevent their intentional permanent release into the wild. There is no conflict with FWS’s authority here.

FWS makes a similar claim when it states:

Under the current definition [in the falconry regulations], the Service would not have MBTA authority with a hybrid of a foreign non-section 10.13 listed raptor and a ‘prohibited raptor,’ a conflict with this regulation.

This statement is correct but misleading. FWS may not and does not have MBTA authority but it still possess full authority to address regulating “prohibited raptors” through the Endangered Species Act, the Wild Bird Conservation Act, and the Convention of International Trade of Endangered Species.

The proposal further states:

The Service responded to comments that hybrids birds [sic] (and captive-bred birds) are not included within the terms of the MBTA, and the commenters implied that coverage of such birds in such regulations is an unlawful expansion of the MBTA. However, regulations governing captive-bred birds have been held to be within the Secretary’s authority under the MBTA (U.S. v. Richards, 583 F.2d 491, 10th Cir. 1978).

The MBTA is a strict liability statute and as such requires explicit provisions for FWS to possess any authority to prohibit possession of birds or an activity with birds (the principle in the Ninth Amendment comes to mind, i.e. citizens’ rights and liberties prevail unless there is sufficient justification to restrict such rights and liberties for the public good). Above and beyond the 2004 amendment, 16 U.S.C Section 703(b), the MBTA is silent regarding hybrids and exotics, both implicitly and explicitly, and therefore is excluded from coverage by the MBTA. U.S. v. Richards was a case involving the sale of pure-bred falcons, i.e. kestrels, not hybrids, and the MBTA does provide FWS with authority to manage commerce of migratory birds – the application of commercial waterfowl regulations would suffice for raptors, leaving most of the management to the States. However, one intent of the Act was to promote breeding of migratory birds in captivity, therefore any prohibition of it would require some justification for the public good and not merely to satisfy the prejudices of the policy makers and employees in Interior. In addition, Richards’ “pre-protection” – under MBTA authority – kestrels were acquired under a Wisconsin special use scientific permit, which did not entitle him to full property rights in them. Utah also placed conditional uses of these birds. These were not birds acquired for personal use, but were acquired "for scientific purposes of designated birds for the purpose of study of their reproductive behavior." (583 F.2d 496) When wildlife is acquired for scientific purposes, those scientists who acquire wildlife are doing so on behalf of the public for the public good and not for personal benefit – in whatever form that may take – and are therefore not entitled to the full rights, liberties and protections citizens possess when they acquire wildlife for personal use.

The MBTA does provide authority for FWS to manage the sale of migratory birds as Richards instructs, but it does not provide authority for their personal use (consider how ducks are managed where no Federal permit is required for possession of domestic bred migratory ducks if commerce is not involved, reflecting the irrelevancy of highly restrictive regulations). States are the proper entity to manage personal use of migratory birds, and now that falconry regulations have been adopted by the States, they will be more restrictive in the management of raptors than they are of waterfowl since raptors demand more knowledge and care by their owners than waterfowl. Regarding humane treatment concerns: there are sufficient statutes and regulations on the books at both the Federal and State levels to protect the interests of privately owned raptors.

FWS’s reference to Richards has no application as it relates to hybrids.

The proposal references another court case in an attempt to justify the expansion of FWS authority. FWS asserts that because Andrus v. Allard, 444 U.S. 51 (1979) provides “expansive reading of the MBTA,” FWS is justified in pulling hybrids under its authority, and this without Congressional provisions. Andrus was another commercial case in which pre-Act eagle feathers (i.e. feathers acquired before the Bald & Golden Eagle Protection Act was implemented) were alleged to have been illegally sold. The Court found the defendants guilty regardless of the 5th Amendment Takings Clause, the Fourteenth Amendment Due Process Clause, and the Ex Post Facto Clause (Article I, Section Ten) of the Constitution. Regardless of this misreading of the Constitution, the Court recognized the defendants’ right to use the eagle feathers in any way they saw fit (i.e. for personal use), as long as there was no sale of the feathers. The Court even said the defendants could use the feathers for display for commercial gain if they chose to. Therefore, reference to this case is again misleading since the only regulation that applied was the sale of feathers, which the Secretary chose to prohibit, but could just as easily have provided regulations for commerce in pre-Act feathers (which would have required registration of those feathers), thereby demonstrating integrity by taking into consideration constitutional protections.

The proposal further states:

[I]n 1998, the Service interpreted migratory bird broadly [which is not allowed for strict liability statutes] at 50 CFR 10.12 (1998) as ‘whatever its origin, whether or not raised in captivity.’

This might be true for commercial sale of migratory birds listed in section 10.13 that are not exempted by Congress (see reference to 703(b) above) but not true for personal use as seen in the way ducks are treated. FWS has no authority to ignore the intent of Congress nor the strict liability limits placed on government agencies in writing and implementing regulations. FWS may be provided with latitude in interpreting statutes and writing regulations, but it is not an unlimited latitude as the Service appears to believe it possesses.

Conner v. U.S. 606 F.2d 269 (1979) places limits on FWS’s authority over domestic bred migratory birds. In this case the Tenth Circuit Court of Appeals stated:

The issues presented for our review are: (1) whether 16 U.S.C. § 703 prohibits only the killing of mallard ducks which are "wild" and, if so, (2) whether the government sustained its burden of establishing that the ducks allegedly killed were "wild."

Conners asserts that the above-mentioned treaties, and their companion statute, apply only to mallard ducks which are "wild" and not to those which have been "captive-reared." We agree. [Emphasis added]

Title 16 U.S.C. § 703 protects only those migratory birds "included in the terms of the conventions between the United States and Great Britain . . . , the United States and the United Mexican States . . . and the United States and the Government of Japan . . . ." Thus, we must look to the treaties themselves to determine whether or not "captive-reared" mallards are a protected class.

Article 1 of the United States-Great Britain treaty provides in part:

Article I.

The High Contracting Powers declare that migratory birds included in the terms of this Convention shall be as follows:

1. Migratory Game Birds: (a) Anatidae or water fowl, including, brant, wild ducks, geese, and swans. 39 Stat. 1702 (1916). (Emphasis supplied.)

Similarly, the convention between the United States of America and the United Mexican States provides in pertinent part:

Article II.

The high contracting parties agree to establish laws, regulations and provisions to satisfy the need set forth in the preceding Article [protection of migratory birds], including:

D)—The establishment of a closed season for wild ducks from the tenth of March to the first of September. 50 Stat. 1312-1313 (1936). (Emphasis supplied.)

The convention between the United States of America and the Government of Japan, however, does not delineate between "wild" ducks and "captive-reared" ducks:

Article II.

1. In this Convention, the term "migratory birds" means:

(a) The species of birds for which there is positive evidence of migration between the two countries from the recovery of bands or other markers; and
(b) the species of birds with subspecies common to both countries or, in the absence of subspecies, the species of birds common to both countries . . . .

2. (a) The list of species defined as migratory birds in accordance with paragraph 1 of this Article is contained in the Annex of this Convention.

The failure of the United States-Japan treaty to specifically delineate between "captive-reared" and "wild" mallard ducks creates an ambiguity which must be resolved by interpretation of the three treaties.

In undertaking such an interpretation, we must attempt to ascertain the intent of the parties to the agreements in order to construe the documents in a manner consistent with that intent. …

Inasmuch as two of the treaties and the controlling regulation specifically refer to "wild ducks," and that criminal statutes must be strictly construed, with ambiguities resolved in favor of the accused, United States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973), we hold that the provisions of the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., do not apply to the killing or attempted killing of "captive-reared" ducks. [Emphasis added]

In so holding, we do not question the authority of the United States Fish and Wildlife Service to promulgate reasonable regulations designed to distinguish "captive-reared" mallard ducks from "wild" mallard ducks so as to effectuate the intent of the treaties. See: e. g., 50 C.F.R. 21.13 (1977).

Conners also contends that the court erred in denying his motion for judgment of acquittal on the grounds that the Government failed to prove that the mallard ducks killed were "wild."

We have carefully reviewed the findings and conclusions of the United States magistrate in this case. There is no finding on the question of whether or not
the ducks killed by Conners were "captive-reared" or "wild." [The appellate court then remanded this question to the lower court.]

Should the trial court find that the ducks killed by Conners were "wild," the conviction should be sustained. On the other hand, if the trial court finds that the mallard ducks killed by Conners were "captive-reared," the charges should be dismissed.

Remanded with instructions.

LOGAN, Circuit Judge, concurring:

I concur in the opinion and in everything said therein except the inferences that the Department of Interior could classify captive-reared birds which are not "wild," whether ducks or other birds, as subject to the Migratory Bird Act. On that subject I adhere to the views stated in my dissent in United States v. Richards,583 F.2d 491 (10th Cir. 1978).

Of course the reasoning in this decision reflects one’s ability to buy a domestic bred mallard duck without a Federal permit and to kill it without such a permit as well, and at any time of year. If domestic raised mallards were under the full authority of FWS the same as wild ducks: 1) a migratory bird stamp would be needed in order to kill one’s mallard; 2) it could only be done within the determined hunting season; 3) it can only be done by “approved” means, such as shotguns; and 4) feeding these ducks would be illegal since this would be perceived as baiting.

One of the problems FWS runs into is the interpretation of the meaning of the word wild. In legal lexicon the term for wild animals is ferae naturae, which means free roaming and not in anyone’s possession. This also reflects the meaning of “migratory birds,” i.e. birds that migrate across borders – birds that are privately owned cannot do this since they are captive. But for privately owned animals extracted from the wild, the term is mansueta naturae, which means a tamed animal, which becomes private property once legally taken. For domesticated animals that are not found in the wild, the term is domitae naturae. Once FWS embraces these legal definitions of animals, as they should, the regulatory authority it possesses becomes clearer. It has no authority over animals domitae naturae (other than their intentional and permanent release to the wild); limited authority over animals mansueta naturae (such as requiring markers be used to identify these birds); and full authority over animals ferae naturae, but only to the extent the MBTA provides explicit provisions for conservation purposes based on it being a strict liability statute. For hybrids, FWS can require a special marker be used to identify these birds due to its authority and duty to prohibit the intentional permanent release of hybrids. Beyond this power, FWS has no authority over hybrids.

The authority to regulate hybrids is reserved for the States as our Federal system requires. Ever since States have adopted raptor breeding and commercial regulations, Federal regulations are redundant, they infringe upon States’ rights, and they waste taxpayers’ money in a time when the Federal budget is in crises. There is no justification in FWS’s attempt to expand its authority over hybrid raptors beyond what it presently possesses in prohibiting the intentional permanent release of them. American Falconry Conservancy therefore strongly objects to this attempt by FWS to expand its power and authority beyond the intent of Congress as expressed in the MBTA.

Bill Meeker

President, AFC