In addition, the Secretary's recently published regulations restricting the use of lead shot in the hunting of migratory waterfowl can be viewed as something of a step in the direction described here.63/ That is, the lead shot regulations are of a different character conceptually from all previous regulation of hunting methods, because the lead shot regulations are aimed at an activity, the adverse effect of which on migratory waterfowl is indirect and unintentional. Admittedly, the lead shot regulations can also be regarded as consistent with other regulations of hunting methods, but to do so one must focus narrowly on the nature of the activity regulated rather than broadly on the nature of the adverse consequence sought to be avoided. 64/ 63/ 641 to exercise them, what remedies does the private citizen The Secretary's lead shot regulations, a source of substan- Apparently, the Secretary has opted for the narrow view of While testing of the novel legal theories described here still appears to be some years off, there have been in recent years some very fundamental challenges to the administration of the federal migratory bird program, which, unlike earlier challenges, allege that such administration is too lax rather than too restrictive. In Fund for Animals, Inc. v. Morton, for example, plaintiffs sought an injunction against the 1974-75 migratory bird hunting regulations because of the Secretary's failure to prepare an environmental impact statement with respect thereto as required by the National Environmental Policy Act.65/ The case was ultimately settled out of court upon the Secretary's agreement to prepare a programmatic impact statement. The following year, many of the same plaintiffs returned to court in Fund for Animals, Inc. v. Frizzell.66/ In the latter action, a number of claims were made, the most vigorously pressed of which was that a new environmental impact statement was required with respect to the proposed hunting of certain species which had not been hunted in immediately preceding years and which had not been fully discussed in the programmatic statement. More fundamental were the contentions that the Convention with Great Britain required either a single 3 month season for all birds or separate 3 month seasons for each of the five families of migratory game birds designated in the Convention, and that the Japanese Convention required a determination of "optimum numbers" for each of the protected species prior to permitting their hunting. 65/ 66/ The district court denied plaintiffs' motion for a Civil No. 74-1581 (D. N.J. 1974). The National Environmental Policy Act is discussed in Chapter Seven infra at text accompanying notes 59-91. 6 ELR 20188 (D.C. Cir., Dec. 24, 1975), aff'g 402 F. Supp. 35 (D.D.C. 1975). preliminary injunction because of their failure to demonstrate either a substantial likelihood of success on the merits or that they would suffer irreparable harm from a denial of the injunction. 67/ The Court of Appeals affirmed the decision of the lower court, but in so doing it addressed only the impact statement claim, and limited itself to a consideration of the plaintiffs' likelihood of sustaining irreparable harm. 68/ Before the case could come to trial back in the district court, the hunting season had ended. On plaintiffs' motion, the district court subsequently dismissed the action without prejudice. trict court never made more than a preliminary inquiry into the merits of the two most fundamental claims, and the Court of Appeals did not examine them at all. Accordingly, their merits will be briefly considered here. Thus, the dis With respect to the claim that the Convention with Great Britain requires a single 3 month migratory bird hunting season, the basic contention is that the Secretary's practice of so limiting the hunting season within each state, while prescribing successively later seasons for more southern states, results in a hunting season which exceeds six months when all states are lumped together. Literally, the Convention refers only to a "season for hunting" migratory game birds. Despite this literal reading of the Convention, it has apparently been the continuous practice of both the United States and Canada to prescribe separate seasons for each state or province. It was this consistent administrative practice, together with the absence of any relevant negotiating history, that persuaded the district court to find that plaintiffs did not have a sub stantial chance of success on the merits of the claim in the Frizzell case.69/ The court was also persuaded by Interior's assertion that its interpretation of the 31⁄2 month provision was appropriate because it gave greater flexibility in the management of migratory birds than would a uniform 3 month season.70/ Even more problematical is the meaning of the requirement in the Japanese Treaty that bird hunting seasons be set so as "to maintain their populations in optimum numbers." Just as the negotiating history of the British Convention failed to illuminate the meaning of the 3 month provision, so too the negotiating history of the Japanese Treaty shed no light on the meaning of the term "optimum numbers." Plaintiffs in the Frizzell case argued that the term should have the same meaning as the term "optimum sustainable population" as used in the Marine Mammal Protection Act, because the Treaty and the Act were drafted at approximately the same time. The government, on the other hand, argued that the Treaty's failure to include a definition of the term indicated an intent not to borrow the Marine Mammal Protection Act's definition. Instead, the government urged that the term imposed no different duty on the Secretary than what he had always done in promulga 69/ 70/ While courts typically give great deference to a long established administrative interpretation of a statute, they are not bound thereby. For an interesting example of how courts respond when a long established administrative practice abruptly changes, see the discussion of Udall v. Wisconsin, in Chapter Eight at text accompanying notes 32-34. It is doubtless true that Interior's position offers more flexibility. On the other hand, it would be possible to achieve still greater flexibility by subdividing individual states into multiple zones and prescribing separate hunting seasons for each. In this manner, each state could have a migratory bird hunting season that exceeds six months in length. While zoning of individual states has not been used much in migratory bird management, its use necessarily sharpens the question of what meaning, if any, the Convention's reference to a 3 month hunting season has. ting hunting regulations under the Treaty Act. The district court again concluded that the plaintiffs had failed to demonstrate a substantial likelihood of disproving the government's interpretation. 71/ In evaluating the meaning of the term "optimum numbers" in the Japanese Treaty, neither the parties nor the court adequately addressed one apparently relevant consideration. That is, since the term is not found in either of the preceding migratory bird conventions, its meaning may be linked to the new purposes intended to be served by the Japanese Treaty. Examining the preambles to each of the conventions, one finds the following statement of purpose in the 1916 Convention: Many of these species are of great value as a source of food or in destroying insects which are injurious to forests and forage plants on the public domain . In a similar vein, the Mexican Convention states its purpose as being to "permit a rational utilization of migratory birds for the purpose of sport as well as for food, commerce and industry." In a strikingly dissimi 71/ In fact, neither party offered a convincing explanation of |