endangered bird, the palila, by threatening to destroy its habitat, thus violating section 7 of the Endangered Species Act.43/ A lawsuit was averted when the Hawaii Department of Fish and Game indicated its intention to terminate the program. 44/ While none of the cases here discussed resulted in a judicial reexamination of the Udall dictum, it would seem that the Secretary's decision to approve or disapprove a particular application for federal money cannot escape judicial review where it is alleged that his action violates a clear substantive command of another federal statute. At most, the dictum means only that the Secretary's determination of whether a proposed project meets the substantive standard of the Pittman-Robertson Act itself, i.e., whether it is "substantial in character and design," may be beyond judicial review.45/ Whether that determination is in fact beyond review has not yet been resolved. 43/ 44/ 45/ Letter from Michael R. Sherwood, Sierra Club Legal Defense Fund, Inc. to Thomas S. Kleppe, Secretary of the Interior, dated June 22, 1976. Section 7 of the Endangered Species Act of 1973 is discussed in Chapter Twelve infra at text accompanying notes 118-45. See Sierra Club, 1 National Wildlife Newsletter No. 6 at 10 (Oct., 1976). It is noteworthy that when describing the identical standard employed in the Federal Aid in Fish Restoration Act, Congressman Dingell, its chief House sponsor, offered the following: The amount of interference so far as Hearings Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries on Miscellaneous Wildlife Bills, 81st Cong., 1st Sess. 55 (1949). Although the Secretary's implementation of the Pittman-Robertson Act has thus far escaped any challenge, apart from that of the Udall case, there are aspects of that administration that raise substantial legal questions. For example, while the PittmanRobertson Act contains a lengthy definition of "wildlife restoration project," it does not contain a definition of "wildlife." Until 1956, because the Fish and Wildlife Service had no special administrative definition of the term for purposes of the PittmanRobertson Act, its general definition, which included "wild mammals, wild birds and their nests and eggs, . . . crustacea, mollusca, fishes, reptiles, amphibians, and their eggs," presumably applied.46/ that year, however, administrative regulations under the Pittman-Robertson Act were revised, ostensibly to effectuate the 1955 amendment authorizing the expenditure of program funds for management of wildlife areas and resources, and "to simplify administrative procedures."47/ As part of that general revision, however, a special definition of "wildlife" was introduced which limited it to wild birds and mammals. That narrow definition, which has been carried forward to the present,48/ is nowhere compelled by the statute, though 46/ 47/ 48/ 50 C.F.R. $1.7 (1949). Actually, however, a more restric- See 50 C.F.R. $80.1(e) (1975). This was neither the first it undoubtedly reflects very closely both the principal focus of state wildlife agency activities and the major interest of those whose tax payments make up the wildlife restoration fund.49/ Very closely related to the restrictive definition of "wildlife" is the unique definition of "project substantiality" found in the administrative regulations. The definition, interpreting the only statutorily prescribed substantive standard for wildlife restoration projects, provides in part that "A substantial project is one which will provide benefits to hunters and fishermen commensurate with cost."50/ Despite these restrictive definitions, actual administrative practice in recent years has been somewhat more flexible, providing limited grants for state projects involving endangered or other non-hunted species, and, in a few rare cases, for species other than birds and mammals.51/ The theory on which grants of the former type have been made is that hunters and fishermen share in common with other citizens certain interests other than simply hunting and fishing and thus derive "benefits" 49/ Query whether feral animals qualify as "wild birds and wild mammals" under the Pittman-Robertson Act? If the allegations of the Sierra Club Legal Defense Fund are correct (see text accompanying note 43 supra), Pittman-Robertson moneys have in fact been paid to support state programs maintaining feral animal populations where such animals are hunted. Yet, the International Association of Game, Fish and Conservation Commissioners argued in an amicus brief in Kleppe v. New Mexico, 96 S.Ct. 2285 (June 17, 1976), that wild horses and burros, being feral animals, should not be considered wildlife. The Supreme Court did not address the purported distinction. 50/ 51/ 50 C.F.R. $80.1(g) (1975). The definition refers to benefits to fishermen because it is applicable both to the PittmanRobertson and the Dingell-Johnson programs. See Wildlife Management Institute, Current Investments, Projected Needs & Potential New Sources of Income for Nongame Fish & Wildlife Programs in the United States 74-78 (1975). from projects designed to aid non-hunted species; 52/ grants of the latter type have been justified on the basis of the predator or prey relationship of the project species to a hunted bird or mammal species. Such justifications, however, seem strained and unconvincing, inviting the more fundamental question of whether the administrative definitions are supported by the Act.53/ Far from finding anything in the Act which compels these restrictive definitions, one can argue that, whatever the original intent of Congress in 1937, the 1970 amendment introducing the option of "comprehensive fish and wildlife resource management plans" indicates a congressional intent that the Act not be administered with a narrow focus solely on game birds and mammals. The very term "comprehensive" seems inconsistent with such a narrow focus, as does the requirement that such plans "insure the perpetuation of [fish and other wildlife] resources for the economic, scientific, and recreational enrichment of the people."54/ Moreover, the 52/ 53/ 54/ Some support for this theory can be found in the administrative regulations, which define the term "project" to include any "substantial undertaking with the objective of . . improving sport fishing, hunting, and related uses" of fish and wildlife populations. 50 C.F.R. $80.1(f) (1975) (emphasis added). Nonetheless, it is hard to reconcile that definition with the definition of "project substantiality." Compounding the confusion is the fact that the term "project substantiality," although defined, is never used in the regulations. It might be argued that the restrictive regulations under the Act are appropriate because federal grants for state programs relating to endangered and threatened species are available under the Endangered Species Act of 1973. However, those grants are available only to states which have entered into cooperative agreements with the federal government under that Act. See Chapter Twelve infra at text accompanying notes 146-60. Moreover, under neither Act is federal money available for state programs involving nonendangered, non-game wildlife. 16 U.S.C. $669e (a) (1) (1970). Fish and Wildlife Service requires that a state which chooses the comprehensive plan option submit a "strategic plan" which, among other things, "[i]dentifies rare, endangered, or unique plant and animal communities for preservation and management."55/ A final legal issue that has arisen under the Pittman-Robertson Act concerns the administrative restriction against "diversion" of federal funds. The Act, from its very beginning, has required states to assure that their hunting license revenues be used solely for the administration of their fish and game departments.56/ The Act also provides that if federal funds are used for purposes other than those for which they were granted, "they shall be replaced by the State before it may participate in any further apportionment."57/ By administrative regulation, such a diversion is deemed to occur when real property acquired or constructed with Pittman-Robertson moneys passes from the control of the state fish and game department.58/ If the state fails within three years to replace such property, using non-federal aid funds, with "property of equal value at current market prices and with commensurate benefits to fish and wildlife," it thereby becomes ineligible for further participation in the Pittman-Robertson program.59/ There are a few reported cases in which private litigants have sought to use the alleged vulnerability of a state to loss of PittmanRobertson funds as a grounds for attacking development projects which include the disposal of state lands. 55/ See Department of the Interior, Fish and Wildlife Service, Federal Aid Manual $14.3 (1973). |