Cerritos Gun Club v. Hall, 8480.

• Decision Date: 15 April 1938
• Docket Number: No. 8480.,8480.
• Citation: 96 F.2d 620
• Parties: CERRITOS GUN CLUB et al. v. HALL et al.
• Court: U.S. Court of Appeals — Ninth Circuit

96 F.2d 620 (1938)

CERRITOS GUN CLUB et al. v. HALL et al.

No. 8480.

Circuit Court of Appeals, Ninth Circuit.

April 15, 1938.

Newlin & Ashburn, of Los Angeles, Cal. (Gurney E. Newlin, C. Hudson, B. Cox, and Robert P. Hastings, all of Los Angeles, Cal., of counsel), for appellants.

Peirson M. Hall, U. S. Atty., and Robert L. Hanley and M. G. Gallaher, Asst. U. S. Attys., all of Los Angeles, Cal., for appellees.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a decree dismissing without leave to amend the bill of appellant, a membership corporation, and three corporations, owners of land in Southern California improved for migratory wild fowl hunting, seeking equitable relief for the protection of the value of their investments, by enjoining appellees, federal officers, from prosecuting them for luring, with grain, migratory game fowl to their properties, there to be shot by their stockholders and members.

The following questions are presented:

A. Under the rule controlling in Panama Refining Co. v. Ryan, 293 U.S. 388, 414, 55 S.Ct. 241, 245, 79 L.Ed. 446, are appellants, owners of wild fowl preserves, threatened with prosecutions for conspiring to aid hunters by baiting such preserves, contrary to the regulation of the Secretary of Agriculture, made pursuant to the Migratory Bird Treaty Act, as amended, 16 U.S.C.A. §§ 703-711, which prosecutions will destroy more than $3,000 in value of each preserve, entitled to claim injunctive relief for the protection from the destruction of such values, on the ground of the invalidity of the act and regulation?

B. Are migratory wild fowl, owned by the states, capable of domestication and possession, and in many instances so domesticated and possessed, like grazing cattle, wandering from state to state, in interstate commerce as they cross state boundary lines, and hence subject to congressional regulation?

C. Is the Migratory Bird Treaty Act and regulation prohibiting luring the birds by baiting, authorized by the provision of the Convention for shortening the season for hunting?

D. Is the regulation forbidding baiting invalid as a delegation of legislative power?

E. Is the regulation, with its criminal sanction, invalid because too vague and uncertain to advise the offender of the offense?

A. Appellants' bill gives them standing here to urge the invalidity of the act and regulation.

Among the averments of the bill, which the dismissal requires us to accept as true, are that each appellant owner of land in Southern California, otherwise of little value, at great expense, from $5,000 to $150,000, has watered and otherwise developed it as a habitat for such migratory game and erected thereon building accommodations for its hunting members and stockholders, and that these enterprises of affording and furnishing such accommodations and opportunity to hunt are made possible of accomplishment only by luring and keeping the migratory game there, through distributing over the premises barley grain upon which the birds can subsist. It is alleged that the value of the investments will be totally destroyed if the appellants legally may be prosecuted under the challenged regulation and act.

Appellants admitted at the hearing that many of the flocks of ducks and geese, in the absence of the watered areas and the lure of feed provided, would not stop at the otherwise barren areas of appellants' properties, but would continue to the vast expanse of the little inhabited waters and marshes of the lower Colorado river and the Gulf of Lower California.

It is urged that the feeding saves more ducks from starvation than are killed by luring them to the hunters. Obviously, if there is ground for such a contention, it is relevant only to a proposal for a modification of the regulation or of the law itself.

The court also takes judicial notice of the existence in the state of California of a large number of such hunting enterprises as those of appellants. The heavy capital investments in such enterprises as the bill alleges, are, in the absence of prohibitive game laws, entirely legal. They create property rights which receive the protection of federal and state courts from those illegally interfering with and frustrating the enterprises which give the property rights their value.

It is obvious that the value of appellants' investments will be totally destroyed if, as alleged, their occupants and users will cease to use them unless the duck clubs bait the premises to lure the game there. The damage alleged exceeds the jurisdictional amount, and the threatened prosecution, if made, will directly and immediately destroy the only value in use which the investments have.

Appellants are not here seeking to protect the rights of the hunters to shoot game so lured. They are seeking equitable relief to prevent the loss of their property values if they themselves are prosecuted for their own acts of baiting the birds, to make valuable their property. That such baiting in aid of hunters violating the act and regulation is a criminal offense by appellants if the act and regulation be valid, is apparent.

The regulation, coupled with its punitive provisions, makes criminal the shooting of migratory game lured by grain "directly or indirectly" to the hunter.

"Waterfowl (except for propagation, scientific, or banding purposes under permit pursuant to regulations 8 and 9 of these regulations) and mourning doves are not permitted to be taken by means, aid, or use, directly or indirectly, of corn, wheat, oats, or other grain or products thereof, salt, or any kind of feed whatsoever, placed, deposited, distributed, scattered, or otherwise put out whereby such waterfowl or doves are lured, attracted or enticed. * * *"

Hence, if the regulation be warranted, each appellant, in maintaining the value of its property by feeding wild fowl, will be an accessory principal under 18 U.S.C.A. § 550 to the offense of each hunting member for each duck or goose of the hundreds or thousands so lured and shot in a season, and a member of a conspiracy to violate the regulation.

The bill alleges that the respondents, as federal enforcing officers, will prosecute appellants for these claimed offenses. Since the appellants' investments and enterprises continue to have their value only if the acts prohibited by the regulation are repeated, hundreds and perhaps thousands of times in a season, it is apparent that, if the regulation be invalid, appellants' property values will be destroyed, since they will be harassed by a multiplicity of unwarranted prosecutions for crimes charged against them, all presenting the identical issue of the validity of the regulation here presented.

Their situation is pertinently analogous to that of the oil producers whose enterprises were threatened with a similar multiplicity of prosecutions under the penalties for violating the regulations under section 9(c) of the National Industrial Recovery Act, 15 U.S.C.A. § 709(c), in the case of Panama Refining Co. v. Ryan, 293 U.S. 388, 414, 55 S.Ct. 241, 246, 79 L.Ed. 446. The Supreme Court there held that the repeated prosecutions warranted the consideration of the constitutionality of the act under which they were claimed to be authorized.

"The statute provides that any violation of any order of the President issued under section 9(c) 15 U.S.C.A. § 709(c) shall be punishable by fine of not to exceed $1,000, or imprisonment for not to exceed six months, or both. We think that these penalties would attach to each violation, and in this view the plaintiffs were entitled to invoke the equitable jurisdiction to restrain enforcement, if the statute and the executive orders were found to be invalid. Philadelphia Co. v. Stimson, 223 U.S. 605, 620, 621, 32 S.Ct. 340, 56 L.Ed. 570; Terrace v. Thompson, 263 U.S. 197, 214-216, 44 S.Ct. 15, 17, 18, 68 L.Ed. 255; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 499, 500, 45 S.Ct. 141, 69 L.Ed. 402." (Italics supplied.)

In a well-considered case brought by a Massachusetts corporation against citizens of North Carolina, the Fourth Circuit granted an injunction to a duck club which has a similar investment in hunting lodges, etc., against the repeated and threatened trespasses of poachers. Swan Island Club v. Ansell, 51 F.2d 337-340. The ground of the equitable jurisdiction exercised by the court was the destruction of the value of the investment in the hunting properties in excess of $3,000. The enjoined acts are held directly to destroy the property values. It is irrelevant to the question of equity jurisdiction that in that case the threatened destruction of property values is caused by repeated trespasses and here by repeated prosecutions. The prevention of the loss of property value is the equitable relief sought, not the personal right to be free of prosecution, just as in the Panama Refining Case, supra.

It is also irrelevant that in baiting the property for hunting, the alleged sole use for which the properties were created and for which alone they have value, no law of the state of California is broken. Such sole use of the property in aid of hunting thereon is a crime under the challenged federal law. As said, it is either a conspiracy to defeat the regulation or an accessory principal crime, or both, for which appellees admit they intend to prosecute appellants. In this respect Judge Healy's opinion seems to be based on the theory that appellants' acts constitute no crime, and hence no prosecutions are warranted. On the contrary, the brief of the government's officers insists that they are entitled to and will prosecute. Since the federal officers are threatening appellants with prosecutions under the Migratory Bird Treaty Act for the acts described in the bill, if, as Judge Healy construes them, these acts do not describe an offense, then a fortiori are appellants entitled to their injunction.

Nor is relevant the illustration of the...