One example is Cape Henry Bird Club v. Laird, in which the plaintiffs sought to block a Corps of Engineers dam project which required the purchase of a state wildlife management area acquired with PittmanRobertson moneys.60/ The plaintiffs contended that the state would thereby lose its eligibility for future Pittman-Robertson funds because the area to be transferred was so unique that no other area offering "commensurate benefits to fish and wildlife" existed, or, if it did, its cost would far exceed the amount to be paid for the land transferred. The court seemingly treated these as two separate contentions, holding that the possible loss of funds through the unavailability of "commensurate land" was "mere speculation"; and that the need to spend a sum in excess of the transfer price for replacement land need only be considered as a cost of the project in the Corps' calculation of a benefit/ cost ratio.61/ Thus, the court appears to have disregarded the literal language of the Pittman-Robertson regulations, which require both that the replacement land be of commensurate benefit to wildlife and that it be of equal market value. Other efforts to invoke the Act's sanction for diversion of funds against major development projects have been equally unsuccessful.62/ The foregoing sets forth the basic outlines of the Pittman-Robertson Act and summarizes the major legal issues concerning its implementation. An issue likely to arise soon on the legislative front concerns proposals to provide additional federal funding for truly comprehensive state programs encompassing both game and non-game wildlife. As has already been indicated, a 60/ 359 F. Supp. 404 (W.D. Va.), aff'd 484 F.2d 453 (4th Cir. 1973). 61/ 359 F. Supp. at 414. 62/ See Citizens Committee for the Columbia River v. Callaway, 494 F.2d 124 (9th Cir. 1974). very small amount of non-game funding is already taking place under the Pittman-Robertson Act, despite administrative regulations of doubtful validity which appear to prohibit it. To provide the additional $40 million annually which has been estimated as needed to sustain such comprehensive programs in the states, the existing federal tax base must be broadened. 63/ Excise taxes have been proposed on the sale of a broad range of outdoor recreational equipment, including camping, skiing and boating equipment. Such taxes could either be added to the existing federal wildlife restoration fund or be used for a special non-game fund. As the experience with the recent component parts legislation shows, however, since the items taxes are not always used in connection with wildlife related activities, there will be strong pressure to make the revenues generated available for a variety of other uses as well. C. The Federal Aid in Fish Restoration Act The Federal Aid in Fish Restoration Act, more commonly known as the Dingell-Johnson Act, is essentially identical to the Pittman-Robertson Act, except that it provides federal assistance to states for projects pertaining to fish.64/ The Dingell-Johnson Act was enacted in 1950 apparently because of general satisfaction with the Pittman-Robertson Act, and because a special wartime tax on certain fishing equipment was likely to be terminated unless it could be earmarked for fish restoration purposes.65/ 63/ See Wildlife Management Institute, supra note 51 at 51-53. 16 U.S.C. $777-777k (1970). 641 65/ See Hearings Before the Subcommittee on Interstate and The provisions of the Dingell-Johnson Act are almost precisely parallel to those of the PittmanRobertson Act. Funds derived from the federal excise tax on fishing rods, creels, reels, and artificial lures, baits and flies are annually apportioned among the states, 40 percent on the basis of geographical area and 60 percent on the basis of the number of persons holding paid licenses to fish for sport or recreation, after first deducting up to 8 percent for administration of the Act and "for aiding in the formulation, adoption, or administration or any compact between two or more States for the conservation and management of migratory fishes in marine or fresh waters."66/ Funds so apportioned to the states are available for use by them for "fish restoration and management projects" or, since 1970, "comprehensive fish and wildlife resource management plans. "67/ The federal share in the cost of such projects or plans is not to exceed 75 percent. The Dingell-Johnson and Pittman-Robertson Acts are in fact so much alike that the Fish and Wildlife Service utilizes a common set of administrative regulations and a common "Federal Aid Manual" for the administration of both programs. Accordingly, the legal issues that might arise with respect to the DingellJohnson Act are much the same as those already discussed in connection with the Pittman-Robertson Act. In fact, however, there has as yet been no reported litigation arising under the Dingell-Johnson Act. The two acts are distinguishable in at least one respect. Whereas the Pittman-Robertson Act contains 66/ the undefined term "wildlife," which has been administratively restricted to birds and mammals of benefit to hunters, the Dingell-Johnson Act applies expressly only to "fish which have material value in connection with sport or recreation in the marine and/or fresh waters of the United States."68/ Accordingly, there would appear to be a stronger statutory justification for the administrative practice of determining "project substantiality" in terms of benefits to fishermen. Again, however, notwithstanding the statute and regulations, there appear to have been at least some DingellJohnson payments for projects involving endangered (and therefore non-fished) fish.69/ D. The Land and Water Conservation Fund Act It was said at the outset of this chapter that the funding of wildlife programs in the United States is dependent upon the utilization of specially earmarked taxes and license fees. The same has been true of outdoor recreation programs generally since 1964. In that year Congress enacted the Land and Water Conservation Fund Act for the purpose of "preserving, developing and assuring accessibility to all citizens . . . of outdoor recreation resources."70/ In the manner of the 68/ Id. $777a. Although the annotation following 16 U.S.C.A. $777 indicates that the functions of the Secretary of the Interior under the Act relating to marine sports fisheries were transferred to the Secretary of Commerce by Reorganization Plan No. 4 of 1970, 35 Fed. Reg. 15627, 84 Stat. 2090, in fact the Secretary of the Interior exercises exclusive authority over all aspects of the Dingell-Johnson program. See Wildlife Management Institute, supra note 51 at 74-78. Query whether fishermen are the only "sport or recreation" users of fish, as the administrative regulations seem to assume? Note also, however, that the definition of fish contained in those same regulations, "aquatic, gill breathing, vertebrate animals bearing paired fins," is not limited to those which have a sport or recreational use. 50 C.F.R. $80.1(e) (1975). 69/ 70/ 16 U.S.C. §§4601 through 4601-11 (1970 & Supp. IV 1974), as Pittman-Robertson and Dingell-Johnson Acts, the Land and Water Conservation Fund Act established in the Treasury a special "land and water conservation fund" comprised of certain specially earmarked revenues and available only for certain prescribed purposes. Unlike those earlier Acts, however, the Land and Water Conservation Fund Act generates funds from a wide variety of sources and applies them to a broad range of both state and federal recreational programs. Under the Act as originally passed, the fund was to be comprised of certain user fees, proceeds from the disposal of surplus federal property, and the federal motorboat fuels tax. These sources of revenue were supplemented in 1968 by an amendment which authorized sufficient unappropriated Treasury funds and miscellaneous receipts under the Outer Continental Shelf Lands Act to be appropriated to the fund so as to guarantee it an annual income of at least $200 million ($300 million as of fiscal year 1971).71/ As originally enacted, the Act authorized the President to designate land or water areas "administered primarily for scenic, scientific, historical, cultural, or recreational purposes" by various federal agencies, including the National Park Service, Bureau of Land Management, Bureau of Sport Fisheries and Wildlife, Forest Service, and others, at which "entrance, admission, and other forms of recreation user fees shall be charged."72/ In the establishment of such fees, "direct and indirect costs to the Government, 71/ 72/ amended by Act of Sept. 28, 1976, Pub. L. No. 94-422, 90 Stat. 1313. 16 U.S.C. $4601-5(c) (1970). Land and Water Conservation Fund Act, Pub. L. No. 88-578, |