Bailey v. Holland

• Decision Date: 17 February 1942
• Docket Number: No. 4884.,4884.
• Citation: 126 F.2d 317
• Parties: BAILEY, Manager of Back Bay Migratory Waterfowl Refuge, et al. v. HOLLAND.
• Court: U.S. Court of Appeals — Fourth Circuit

126 F.2d 317 (1942)

BAILEY, Manager of Back Bay Migratory Waterfowl Refuge, et al. v. HOLLAND.

No. 4884.

Circuit Court of Appeals, Fourth Circuit.

February 17, 1942.

John P. Hearne, of Washington, D. C., Atty., Department of Justice (Norman M. Littell, Asst. Atty. Gen., and Vernon L. Wilkinson, of Washington, D. C., Atty., Department of Justice, on the brief), for appellants.

W. R. Ashburn, of Norfolk, Va., for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This is an appeal from a judgment entered in the United States District Court for the Eastern District of Virginia, June 14, 1941, enjoining appellants from enforcing a regulation promulgated by the Secretary of Interior on October 4, 1939, which prohibited the hunting of migratory wild fowl on land and water not owned by the United States but adjacent to the federally owned Back Bay Migratory Waterfowl Refuge in Virginia. The Refuge is an "inviolate sanctuary" for migratory birds, comprising approximately 4,400 acres of islands and shorelands shown on the shaded area on the attached map. It was acquired by the United States through purchase and condemnation proceedings instituted pursuant to the Migratory Bird Conservation Act of February 18, 1929, c. 257, 45 Stat. 1222, 16 U.S.C.A., § 715 et seq.

B. P. Holland, the appellee, claims to be the owner of Landing Cove and Cedar Creek Cove adjacent to, but not a part of, the Back Bay Refuge, (A and B on map). On November 16, 1939, Holland brought this action to enjoin appellants from enforcing the aforementioned regulation which prohibited the hunting of migratory birds on approximately 5,000 acres of land and water adjoining the Refuge (indicated by dotted area on the map). Appellee's two coves comprise less than 100 acres of this closed area.

In the Migratory Bird Treaty of 1916, 39 Stat. 1702, the United States and Great Britain agreed to take the necessary measures to insure the preservation of migratory birds. A similar convention with Mexico in 1936, 50 Stat. 1311, specifically provided for the "establishment of refuge zones" in which the taking of migratory birds would be prohibited. These treaties have been implemented by the Migratory Bird Treaty Act of July 3, 1918, c. 128, 40 Stat. 755, and the amendatory Act of June 20, 1936, c. 634, 49 Stat. 1555, wherein it is provided, 16 U.S.C.A. §§ 703 and 704:

"Unless and except as permitted by regulations made as hereinafter provided * * * it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill * * * any migratory bird, or any part, nest, or egg of any such birds, included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August 16, 1916 (39 Stat. 1702), and the United States and the United Mexican States for the protection of migratory birds and game mammals concluded February 7, 1936. * * *

"Subject to the provisions and in order to carry out the purposes of the conventions * * * the Secretary of the Interior¹ is authorized and directed, from time to time, having due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds, to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions to allow hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any such bird, or any part, nest, or egg thereof, and to adopt suitable regulations permitting and governing the same, in accordance with such determinations, which regulations shall become effective when approved by the President.²"

Pursuant to the authority thus vested in him, the Secretary of the Interior promulgated general regulations on August 3, 1939, which were approved by the President on August 11, 1939, 4 Fed.Reg. 3621-3627, 16 U.S.C.A. § 704 note. In these regulations the Acting Secretary of the Interior declared:

"* * * I, Oscar L. Chapman, Acting Secretary of the Interior, having due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of migratory birds included in the terms of the Convention between the United States and Great Britain for the protection of migratory birds, concluded August 16, 1916, and the Convention between the United States and the United Mexican States for the protection of migratory birds and game mammals, concluded February 7, 1936 * * * have determined when, to what extent, and by what means it is compatible with the terms of said conventions and act to allow the hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, exportation, and importation of such birds and parts thereof and their nests and eggs, and the exportation and importation of such mammals to and from Mexico, and, in accordance with such determinations, do hereby adopt the following regulations as suitable regulations * * *."

In Regulation 4 he provided for open seasons throughout the United States on various migratory birds, subject to the following provision:

"Nothing herein shall be deemed to permit the taking of migratory birds on any reservation or sanctuary established under the Migratory Bird Conservation Act of February 18, 1929, 45 Stat. 1222, nor on any area of the United States set aside under any other law, proclamation, or Executive order for use as a bird, game, or other wildlife reservation, breeding ground, or refuge except insofar as may be permitted by the Secretary of the Interior under existing law, nor on any area adjacent to any such refuge when such area is designated as a closed area under the Migratory Bird Treaty Act * * *."

On October 4, 1939, the Secretary of the Interior issued the regulation which is attacked by the appellee in the case at bar (4 Fed.Reg. 4285). This regulation "designated as closed area in or on which pursuing, hunting, taking, capturing, or killing, or attempting to take, capture, or kill, migratory birds is not permitted, all areas of land and water adjacent to the Back Bay Migratory Waterfowl Refuge, in Princess Anne County, Virginia, not now owned by the United States" within described boundaries embracing some 5,000 acres of coves, narrows and bays bordering the islands and shorelands comprising the Back Bay Migratory Waterfowl Refuge (see map). And on October 16, 1939, the President issued the following proclamation, No. 2370 (4 Fed.Reg. 4287):

"And Whereas upon consideration it appears that the foregoing regulation will tend to effectuate the purposes of the aforesaid Migratory Bird Treaty Act:

"Now, Therefore, I, Franklin D. Roosevelt, President of the United States of America, under and by virtue of the authority vested in me by the aforesaid Migratory Bird Treaty Act, do hereby approve and proclaim the foregoing regulation of the Secretary of the Interior."

The appellee, in attacking the regulation as invalid, asserted that he owned lands extending to the middle of Cedar Creek Cove and all of Landing Cove (A and B on map) which were included within the closed zone; that he also owned a tract of marshland outside the closed zone which adjoined the Western half of Cedar Creek Cove (C on map); and that all his properties, together with improvements and equipment, exceeded $10,000 in value so long as they could be utilized for shooting migratory waterfowl during the open season, but that otherwise the properties were practically worthless.

The court below enjoined the appellants from enforcing the regulation insofar as it affected appellee's property. It held that the regulation was not promulgated with due regard for the standards prescribed by the Act, that it discriminated against appellee's property and that, in addition, it extended the Back Bay Refuge to include his property without payment of compensation. Accordingly, the court, on June 14, 1941, granted a permanent injunction against the appellants. This appeal duly followed.

The judgment below invalidating the Secretary of the Interior's regulation establishing a "closed area" adjacent to the Back Bay Waterfowl Refuge was not bottomed on any want of power in Congress to protect migratory waterfowl. The court recognized, and the appellee conceded, that the Migratory Bird Treaty Act prohibiting all hunting of migratory birds throughout the United States "unless and except as permitted by regulations" of the Secretary of the Interior, was a valid exercise by Congress of its treaty and commerce powers. State of Missouri v. Holland, 1920, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641, 11 A.L.R. 984; United States v. Griffin, D.C. S.D.Ga.1935, 12 F.Supp. 135; United States v. Schultze, D.C.W.D.Ky.1939, 28 F.Supp. 234. Nor was the regulation invalidated for any lack of definite standards in the Act which delegated regulatory authority to the Secretary. Cerritos Gun Club v. Hall, 9 Cir., 1938, 96 F.2d 620; Shouse v. Moore, D.C.E.D.Ky.1935, 11 F.Supp. 784.

With these observations in mind, we shall discuss each of the reasons advanced by the court below in holding the regulation invalid.

The 1916 Treaty with Great Britain obligated the United States to take measures to insure the preservation of migratory birds, and the 1936 Treaty with Mexico specifically provided for the "establishment of refuge zones" in which the taking of migratory birds would be prohibited. Congress honored these obligations by enacting the Migratory Bird Treaty Act of 1918 and the amendatory Act of 1936. These statutes made it unlawful to hunt migratory birds "unless and except as permitted by regulations" of the Secretary of the Interior. In promulgating regulations, the Secretary is required to have due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times...