of authority has already been described in Chapter Two, and will not be repeated here.124/ Suffice it to say here that the Act declared all wild free-roaming horses and burros "to be under the jurisdiction of the Secretary [of Interior or Agriculture, as appropriate] for the purpose of management and protection. "125/ The 1971 Act confronted a problem unique among wildlife laws. The animals it aimed to protect could not always be readily distinguished from animals not subject to its protection. That is, the Act's provisions extended only to "unbranded and unclaimed horses and burros on public lands of the United States. "126/ Many branded or otherwise claimed horses and burros intermingle with the protected animals on the Western range. Although the Act permits the recovery of a horse or burro on the public lands by any person claiming ownership thereof "if recovery is permissible under the branding and estray laws of the State in which the animal is found," in actual practice such recovery has been exceedingly difficult to accomplish.127/ Hence, substantial numbers of horses and burros not subject to the Act's protections continue to roam freely with those which are so subject. Further complicating the issue of the Act's coverage is the question of what protection is afforded to horses and burros on private lands. By the Act's def 124/ See Chapter Two supra at text accompanying notes 69-75. 125/ 16 U.S.C. $1333(a) (Supp. IV 1974). 126/ 127/ 16 U.S.C. $1332(b) (Supp. IV 1974). The difficulty in effecting recovery has been attributable in part to the restrictions of the 1959 Act prohibiting the use of aircraft or motor vehicles in capturing wild horses. The Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, $404, amends the Horses and Burros Act to permit the use of helicopters, under specified conditions, in administering the Act. inition, such animals are not "wild free-roaming horses and burros." However, if they have strayed from public lands onto private lands, the protection for which they were eligible while on public lands remains with them.128/ The private landowner onto whose lands such animals have strayed may not remove them, but must instead arrange for their removal by federal personnel. Alternatively, the private landowner may maintain them "if he does so in a manner that protects them from harassment, and if the animals were not willfully removed or enticed from the public lands."129/ Putting aside the definitional ambiguities, the Act's prohibitions on taking are reasonably straightforward. It provides that any person who "maliciously causes the death or harassment" 130/ of a protected horse or burro, or who "processes or permits to be processed into commercial products the remains "131/ of same, may be fined up to $2,000 or imprisoned for up to one year, or both. Identical penalties may be imposed on anyone who, without permission from the appropriate Secretary, "willfully removes or attempts to remove a wild free-roaming horse or burro from the public lands."132/ 128/ 129/ 130/ 131/ 132/ Whether this aspect of the Act is constitutional was expressly left undecided in Kleppe v. New Mexico, 96 S. Ct. 2285, 2295 (June 17, 1976). 16 U.S.C. $1334 (Supp. IV 1974). 16 U.S.C. $1338 (a) (3) (Supp. IV 1974). The bill passed by 16 U.S.C. $1338 (a) (4) (Supp. IV 1974). To date, there has not been any litigation con cerning the foregoing provisions. There has, however, been some important litigation concerning the Act's requirements for the management of wild horses and burros. That litigation will be examined in detail in Chapter Six.133/ 133/ See Chapter Six infra at text accompanying notes 169-83. There is no federal wildlife statute which relies exclusively on the regulation of taking to achieve its goals. In fact, all federal statutes which restrict the taking of wildlife also restrict at least some aspects of commerce in wildlife or wildlife products. Thus, for example, the Migratory Bird Treaty Act, in addition to restricting the hunting, taking, killing and capturing of migratory birds, as discussed in the preceding chapter, also makes it unlawful for any person to "possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export" them except as permitted under regulations of the Secretary of the Interior.1/ These prohibitions are considerably more expansive than the limited proscriptions contained in the 1916 Convention with Great Britain against the "shipment or export" of migratory birds from any state during its close season 1/ 16 U.S.C. $703 (1970 & Supp. IV 1974). It is noteworthy and against the "international traffic" in unlawfully taken migratory birds.2/ The Bald Eagle Protection Act likewise prohibits not only the taking of bald and golden eagles, but also their possession, sale, purchase, barter, transportation, exportation, or importation.3/ Finally, the Wild Free-Roaming Horses and Burros Act prohibits the processing of wild horse or burro remains into commercial products and the sale of any wild horse or burro maintained on private land. 4/ In each of these examples, the restrictions relating to commerce serve in part to supplement and buttress federal prohibitions on taking. While federal authority for the underlying prohibition has frequently been challenged, there has seldom been any serious doubt concerning the constitutional authority of federal regulation of interstate and foreign commerce in wildlife and wildlife products.5/ Convention for the Protection of Migratory Birds, United 16 U.S.C. $1338 (a) (Supp. IV 1974). The constitutional issue considered in Chapter Two supra at |