United States v. Helsey

• Citation: 463 F. Supp. 1111
• Decision Date: 11 January 1979
• Docket Number: No. CR-78-91-BLG.,CR-78-91-BLG.
• Parties: UNITED STATES of America, Plaintiff, v. Sheldon C. G. HELSEY, Orville B. Jones and Jerry A. Shipman, Defendants.
• Court: U.S. District Court — District of Montana

463 F. Supp. 1111

UNITED STATES of America, Plaintiff, v. Sheldon C. G. HELSEY, Orville B. Jones and Jerry A. Shipman, Defendants.

No. CR-78-91-BLG.

United States District Court, D. Montana, Billings Division.

January 11, 1979.

Robert L. Zimmerman, Asst. U. S. Atty., Billings, Mont., for plaintiff.

Willis B. Jones, Blair Jones, Jones Law Firm, Billings, Mont., for defendants.

ORDER

BATTIN, Chief Judge.

The defendants in this case have been charged by information with violation of the Airborne Hunting Act of 1971, 16 U.S.C. § 742j-1, and with trespass on Indian trust land for the purpose of hunting thereon, in violation of 18 U.S.C. §§ 1165 and 2. The defendants have moved to dismiss Count Two of the information, which charges them with violation of the Airborne Hunting Act, and to suppress certain evidence acquired and certain statements taken by Bureau of Indian Affairs Criminal Investigator Trottier, and Crow Tribal law enforcement personnel. The defendants have also moved to compel production by the government of a witness list.

I. Motion to Dismiss

The defendants, in moving to dismiss Count Two of the information, contend that the Airborne Hunting Act, 16 U.S.C. § 742j-1, which is a prohibition of airborne hunting, is unconstitutional. It is the defendants' contention in this regard that by virtue of the reserved powers doctrine of the Tenth Amendment, and by virtue of the absence of any express grant of authority to Congress by the Constitution to enter the arena of game and fish management within the states, § 742j-1 constitutes an unlawful preemption of reserved state regulatory authority. The United States has advanced the argument that the statute in question is authorized by Article I, Section 8, Clause 1, of the Constitution, the General Welfare Clause. Because such legislation as § 742j-1 is constitutionally authorized, it is the further contention of the United States that, although the states have, by virtue of their police power, the initial authority to regulate the taking of fish and game, the federal government is empowered to totally displace state regulation in this area.

Article I, Section 8, Clause 1, of the United States Constitution provides that "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; . . .." It is an inarguable proposition that the General Welfare Clause constitutes a grant of expansive power to the Congress. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). However, it is equally inarguable that

. . . the phrase "to provide for the general welfare" qualifies the power "to lay and collect taxes." The view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been authoritatively accepted.

United States v. Butler, 297 U.S. 1, 64, 56 S.Ct. 312, 318, 80 L.Ed. 477 (1936).

In the Butler decision the Court further stated, quoting from Linder v. United States, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819 (1925), that

"Congress cannot, under the pretext of executing delegated power, pass laws for the accomplishment of objects not entrusted to the Federal Government. And we accept as established doctrine that any provision of an act of Congress ostensibly enacted under power granted by the Constitution, not naturally and reasonably adapted to the effective exercise of such power but solely to the achievement of something plainly within the power reserved to the States, is invalid and cannot be enforced."

Butler, 297 U.S. at 69, 56 S.Ct. at 320.

Analysis of the authorities and of the underlying legislative history has persuaded me that § 742j-1 constitutes an impermissible and invalid preemption of a regulatory power plainly reserved to the states and, as such, cannot be enforced.

The Tenth Amendment states that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The reserved powers doctrine of the Tenth Amendment has long been fundamental to varied aspects of American decisional law. In Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529, 62 L.Ed. 1101 (1918), the Court, while recognizing federal jurisdiction over interstate commerce, emphasized preservation of powers carefully reserved to the states by the Tenth Amendment.

The maintenance of the authority of the states over matters purely local is as essential to the preservation of our institutions as is the conservation of the supremacy of the Federal power in all matters intrusted to the nation by the Federal Constitution.

In interpreting the Constitution it must never be forgotten that the nation is made up of states, to which are Intrusted the powers of local government. And to them and to the people the powers, not expressly delegated to the national government are reserved. Citation omitted. The power of the states to regulate their purely internal affairs by such laws as seem wise to the local authority is inherent and has never been surrendered to the general government. Hammer v. Dagenhart, 247 U.S. at 275, 38 S.Ct. at 532.

As it is apparent that the states have reserved those powers not expressly granted to the federal government by the Constitution, and that Congress is powerless to constitutionally preempt such reserved powers, the next inquiry is whether the regulation of fish and wildlife is a power reserved to the states. The general rule controlling this inquiry is found in Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896), in which it is determined that the right to control and regulate fish and wildlife is reserved to the states. The justification for the rule is founded upon two distinct philosophies. The first is that wild game within a state is held in trust by the state for the people in their collective sovereign capacity; second, that the inherent police power of the states enables them to exclusively regulate fish and game within their borders. Geer, 161 U.S. at 528, 534, 16 S.Ct. 600. In United States v. McCullagh, 221 F. 288 (D.Kansas 1915), Judge Pollock, relying heavily on Geer, declared unconstitutional an Act of Congress which had as its purpose federal protection of migratory waterfowl. In so holding, the Court stated that:

If the state, either by its laws, or in the absence of prohibitive laws, once permits game to come under authority of the . . . national Constitution, then all state control or authority thereover of necessity must cease to exist, and its trust title for the common good of all the people of the state be cut off and destroyed.

United States v. McCullagh, 221 F. at 292.

The Court further stated that

. . . title and exclusive power of control over wild game coming within the borders of a state of this country resides in the state, and not in the nation . ..

McCullagh, 221 F. at 294.

In order to preclude misunderstanding, it must be made clear that a federal migratory bird Act, the Migratory Bird Treaty Act, 16 U.S.C. §§ 703, et seq., is presently in force and has been upheld by the United States Supreme Court in Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920). Holland is distinguishable from McCullagh insofar as the Congressional power for enactment of the Migratory Bird Treaty Act was derived expressly from the power of the federal government to enter into treaties with other sovereign nations and to make regulations reasonably necessary to the implementation of such treaties. The facts in Holland show that the United States entered into a treaty with Great Britain for the protection of migratory waterfowl. The Court upheld the Act as being passed by Congress pursuant to the treaty power, but made clear that it was not addressing the validity of previous decisions concerning federal regulation of fish and wildlife.

An earlier act of Congress that attempted by itself, and not in pursuance of a treaty, to regulate the killing of migratory birds within the states had been held bad in the district court. United States v. Shauver, D.C., 214 F. 154; United States v. McCullagh, D.C., 221 F. 288. Those decisions were supported by arguments that migratory birds were owned by the states in their sovereign capacity, for the benefit of their people, and that under cases like Geer v. Connecticut, citations omitted, this control was one that Congress had no power to displace. The same argument is supposed to apply now with equal force.

Whether the two cases cited were decided rightly or not, they cannot be accepted as a test of the treaty power.

Missouri v. Holland, 252 U.S. at 432, 433, 40 S.Ct. at 383.

It clearly appears that the Court went to great length in response to the rationale of Shauver and McCullagh to distinguish the Holland case by justifying the Migratory Bird Treaty Act pursuant to Congress' treaty power, and on no other grounds.

This Court, too, has found, on at least two occasions, that the regulatory power over fish and wildlife is properly vested in the states.

In two analogous situations, involving a conflict between state and tribal jurisdiction, this Court held that the State of Montana's police power provided it with wildlife regulatory authority over the non-trust lands of the Crow Indian Reservation. In United States v. Sanford, 547 F.2d 1085 (9th Cir. 1976), in considering the applicability of Montana game laws to non-Indians on Indian reservations, the Court of Appeals affirmed this Court's finding that the State of Montana has authority to regulate hunting and fishing by non-Indians on the Crow Reservation. In reaching this decision, the Court of Appeals cited with approval a statement appearing in a Montana case, State v. Danielson, 149 Mont. 438, 427 P.2d 689 (1967):

The State of Montana has jurisdiction to enforce its fish and game regulations on Indian reservations contained within its boundaries with

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