PART TWO THE MAJOR THEMES OF FEDERAL WILDLIFE LAW In the chapters that comprise this second Part, the great diversity of problems confronting federal wildlife law and the variety of approaches designed to solve them will be examined. The initial chapters focus on the four basic tools of federal wildlife regulation, the regulation of taking, the regulation of commerce in wildlife and wildlife products, the acquisition and management of wildlife habitat, and mandating the consideration of the impacts on wildlife of various forms of development. Succeeding chapters consider certain special aspects of federal wildlife law, including methods of funding, predator control, pesticide usage, and international agreements. The bureaucratization of federal wildlife law that was previously described will be readily apparent in the following chapters. The many federal wildlife programs described here have been administered by numerous agencies bearing various names over the last several decades. A brief summary of the names and responsibilities of those agencies is provided here to assist the reader in following the shifts in bureaucratic responsibility. Most wildlife responsibilities other than marine fisheries were orginally assigned to the Bureau of Biological Survey in the Department of Agriculture. The Bureau of Fisheries in the Department of Commerce had responsibility generally over marine fishery matters. Both Bureaus were transferred to the Department of the Interior in 19391/ and there consoli 1/ Reorg. Plan No. II of 1939, §4, 4 Fed. Reg. 2731, 2732, dated in 19402/ into one agency known as the Fish and Wildlife Service. That consolidation was undone by the Fish and Wildlife Act of 1956, which created within the Fish and Wildlife Service a Bureau of Sports Fisheries and Wildlife and a Bureau of Commercial Fisheries, between which authority was divided pretty much as it had been between the two pre-1939 Bureaus.3/ A further executive reorganization in 1970 transferred the Bureau of Commercial Fisheries to the newly created National Oceanic and Atmospheric Administration within the Commerce Department, where it became known as the National Marine Fisheries Service.4/ Meanwhile, the Bureau of Sports Fisheries and Wildlife, which remained in the Interior Department, was renamed the Fish and Wildlife Service in 1974.5/ By virtue of the 1970 reorganization, administration of several major wildlife laws has been divided between the Fish and Wildlife Service and the National Marine Fisheries Service. Reorg. Plan No. III of 1940, 5 Fed. Reg. 2107, 2108, 54 16 U.S.C. $742b (b)(1970), amended by Pub. L. No. 93-271. 16 U.S.C. §742 (c) (Supp. IV 1974). The earliest and simplest form of wildlife regulation is prohibition or limitation of the killing of wildlife. Because such regulation was well established at the state level during the nineteenth century, the initial federal foray into wildlife regulation at the beginning of the present century was designed simply to buttress that system of state regulation.1/ It was not long, however, before the federal government itself became directly involved in limiting the "taking" of wildlife. In this chapter, certain federal statutes which rely either exclusively or predominantly on this form of wildlife regulation will be examined. The most important of these are the Migratory Bird Treaty Act, the Bald Eagle Protection Act and the Wild Free-Roaming Horses and Burros Act. More recent federal legislation which attempts to integrate restrictions on taking into comprehensive programs for the protection of marine mammals and endangered species will be examined in later chapters, 2/ as will the subject of restrictions on taking in connection with the management of federal lands.3/ A. Limitations on the Taking of Migratory Birds The events leading up to the signing in 1916 of the Convention with Great Britain for the Protection of Migratory Birds, 4/ the passage in 1918 of the Migratory 1/ See the discussion of the Lacey Act in Chapter Two supra at text accompanying notes 38-40 and in Chapter Five infra at text accompanying notes 9-13 . See Chapters Eleven and Twelve infra. 3/ See Chapter Six infra. तोलोगे Aug. 16, 1916, 39 Stat. 1702, T.S. No. 628 (hereinafter referred to as "Canadian Convention"). Bird Treaty Act,5/ and the Supreme Court's landmark decision in Missouri v. Holland, 6/ upholding the constitutionality of both the Convention and the Act, have been described in Chapter Two.7/ In this chapter, attention will be focused on the terms of the Convention and the Act which implemented it, as well as upon subsequent treaties with Mexico and Japan providing similar protection for migratory birds. 1. The Treaties The Convention with Great Britain is a brief and rather simple document. In general terms, it establishes three separate groups of migratory birds: 1) migratory game birds, 2) migratory insectivorous birds, and 3) other migratory nongame birds. For each group, a "close season" is established by Article II, during which "no hunting shall be done except for scientific or propagating purposes under permits." The close season for migratory insectivorous and other migratory nongame birds is year round, except that certain enumerated types of birds in the latter grouping may be taken by Eskimos and Indians for food and clothing, but may not be sold of offered for sale. With respect to migratory game birds, Article II of the Convention provides that the close season shall be between March 10 and September 1,8/ and that the "season for hunting shall be further restricted to such period not exceeding three and one-half months as the High Con 5/ Ch. 128, 40 Stat. 755 (1918) (current version at 16 U.S.C. $$703-711 (1970 & Supp. IV 1974)). 7/ 8/ See Chapter Two supra at text accompanying notes 47-57. tracting Powers may severally deem appropriate and define by law or regulation."9/ In addition, Article V prohibits the taking of nests or eggs of migratory birds, except for scientific or propagating purposes. Finally, Article VII authorizes the issuance of permits to kill any migratory birds which, "under extraordinary conditions, may become seriously injurious to agricultural or other interests in any particular community." Subsequent treaties pertaining to the conservation of migratory birds, closely patterned after the 1916 Convention, were signed with Mexico in 193610/ and Japan in 1972.11/ Each of these treaties, however, was slightly different in its particulars from the original Convention. The Mexican treaty, for example, limits the length of the hunting season for migratory birds to a maximum of four months, and requires that such hunting be conducted "under permits issued by the respective authorities in each case."12/ In addition, 9/ For a discussion of recent litigation concerning the meaning of the quoted language, see text accompanying notes 66-70 infra. 10/ 11/ 12/ Convention for the Protection of Migratory Birds and Game Convention for the Protection of Migratory Birds and Birds Mexican Convention, Art. II (C). The Mexican Convention is |