Although the so-called "Police Powers" provide authority for the various States to conserve and manage wildlife on behalf of their citizens, the U.S. Constitution, the source of all Federal authority, is silent with regard to wildlife. However, the U.S. Congress has enacted a multitude of Federal wildlife laws and the courts, in their interpretations of those laws in the context of Constitutional powers that clearly are reserved to the Federal government -- the Federal Property Management Powers, the Interstate Commerce Clause, the Treaty Making Power and the treaties negotiated pursuant to it -- have established a comprehensive array of Federal authority and responsibility.
Thus, the Federal Government is empowered to participate as a "full partner" with the States in the conservation and management of wildlife and the habitats upon which they depend at the national level and with other nations at the international level.
Key court cases are cited, relevant details of treaties that now are in full force and effect are discussed briefly, and statutory authorities are touched upon.
2.2 Constitutional Authority.
A. Under the U.S. federal system of government, the powers and authorities of the Federal Government are limited to those derived from the U.S. Constitution which is silent with regard to the conservation or management of wildlife. The Tenth Amendment to the Constitution reserves to the States all powers not delegated to the Federal Government nor expressly denied the States. These State Powers enable a State to undertake a variety of actions on behalf of its citizens, including the protection and management of certain wildlife.
Although the Constitution does not provide specific authority to protect or manage wildlife, it does assign certain powers to the Federal Government. These include the power to make international treaties and to regulate interstate commerce.
The Federal courts play a key role by interpreting the often general language of the Constitution. In the case of subjects not specifically mentioned in the Constitution, the Supreme Court is the ultimate arbiter of Federal and State authority.
In 1976 the Supreme Court, in Kleppe v. New Mexico, recognized the Constitution's provision of authority to the Congress to ". . . make all needful rules and regulations respecting the Territory or other Property belonging to the United States . . ." as being applicable to wildlife and unanimously agreed that Federal authority to protect Federal lands includes the ". . . power to regulate and protect the wildlife living there . . .", thus clarifying the existence of a third source of constitutional authority for Federal involvement in the conservation and management of wildlife. These powers are paramount to those of the States and, to the extent that Congress uses them to conserve wildlife, such action may pre-empt State authority.
A brief overview of the constitutional basis for Federal wildlife authority is given here. A more comprehensive treatment of the historical development of Federal wildlife law may be found in Michael J. Bean's "The Evolution of National Wildlife Law."
B. Initially, the Supreme Court dealt with wildlife cases that focused mainly on the authority of States to regulate the taking of fish, game, and shellfish. In a series of cases in the 19th century, the Court determined the States did have authority to control and regulate wildlife and went so far as to declare, in Geer v. Connecticut, in 1896 that there was a "common property in game" that the State had the authority to regulate "as a trust for the benefit of the people." In essence, this case "articulated a general theory of State 'ownership' of wildlife," which the States later relied upon to challenge the validity of Federal wildlife-regulation efforts. The State ownership doctrine was used only once by the Court. In The Abby Dodge, a 1912 decision, the Court barred Federal regulation of the harvest of sponges in Florida's territorial waters on the ground that the regulation of such harvest was exclusively within the power of the State.
In 1900, the Federal Government became directly involved in wildlife regulation when Congress passed the "Lacey Act." This statute authorized the Secretary of Agriculture to conserve and restore wild birds in the United States". . . where the same have become scarce or extinct . . ." and to regulate the import and the introduction of ". . . American or foreign birds or animals in localities where they have not heretofore existed . . ." It also prohibited interstate commerce in wildlife killed in violation of State law. The "Lacey Act" represented the first clear assertion of Federal authority over wildlife.
When Congress passed other wildlife laws, the Supreme Court inevitably found its attention focused on cases of State-Federal conflict over authority to regulate wildlife. In resolving these cases over the years, the Court moved away from its State Ownership Doctrine and found ample reason to uphold Federal laws on the basis of the Federal Government's treaty-making, Federal-property, and interstate-commerce powers. Since then, Bean observes, the Ownership Doctrine "has received no authoritative judicial support" and "has been given a quiet interment."
C. In 1913, as a part of the USDA Appropriations Act, the Congress passed the "Migratory Bird Act of 1913." That Act declared all migratory game and insectivorous birds ". . . to be within the custody and protection of the government of the United States . . ." and prohibited their hunting except pursuant to Federal regulations. The Act soon was subject to legal challenge (U.S. v. Shauver) and lackluster arguments by the government raised serious concern that the Supreme Court would render an adverse decision. However, before the Court ruled, the Department of State concluded the "Convention for the Protection of Migratory Birds" with Great Britain on behalf of Canada. After the 1918 passage of implementing legislation in the form of the "Migratory Bird Treaty Act," the Supreme Court dismissed the case.
The Supreme Court's 1920 decision in a challenge to the Migratory Bird
Treaty Act is considered a landmark. Missouri v. Holland resolved
the question of whether the doctrine of State ownership of wildlife was
a bar to Federal wildlife regulation and established beyond question the
Federal Treaty Making Power as a source of authority for Federal wildlife
regulation. Justice Oliver Wendell Holmes, writing for a seven member majority
of the Court, disposed of the State ownership argument as follows:
". . . The State . . . founds its claim of exclusive authority upon an assertion of title . . . No doubt it is true that as between a State and its inhabitants the State may regulate the killing and sale of such birds, but it does not follow that its authority is exclusive of paramount powers. To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone, and possession is the beginning of ownership . . . But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain . . ."The Supreme Court's decision in Missouri v. Holland opened the door to the making of other treaties providing for the conservation and management of wildlife of common interest. Treaties concluded to date include those protecting migratory birds, various fisheries and marine mammals; regulating commerce in wildlife or products derived from them; restricting the importation, exportation or establishment in the wild of exotic species; providing for the establishment and management of various categories of protected areas of value to wildlife and calling for the prevention or abatement of the ". . . pollution or detrimental alteration . . ." of the environment of certain wildlife.
D. Congress also has the constitutional power to regulate interstate commerce. The Supreme Court's broad interpretation of this power permits Federal regulation of a host of commerce-related activities, including the taking of fish and wildlife. In Douglas v. Seacoast Products, Inc., the Court held that Congress has the power to regulate the taking of fish in State waters in cases where there is some related effect on interstate commerce. It also held, in Andrus v. Allard, that the Migratory Bird Treaty Act was a valid exercise of the interstate-commerce power and in Palila v. Hawaii Department of Land and Natural Resources, a Federal District Court held that ". . . a national program to protect and improve the natural habitats of endangered species preserves the possibilities of interstate commerce in these species and of interstate movement of persons, such as amateur students of nature or professional scientists who come to a State to observe and study these species . . ."
E. Bean concludes that ". . . it is clear that the Constitution, in its treaty, property and commerce clauses, contains ample support for the development of a comprehensive body of Federal wildlife law . . ." However, he also points out that such a conclusion does not suggest the States should be divested of any role in the regulation of wildlife or imply any preference for a particular allocation of responsibilities between the States and the Federal Government but rather for reasons of policy, pragmatism, and political comity, it is clear that the States will continue to play an essential role.
Thus, while the Constitution provides no specific authority for a Federal role in wildlife conservation or management, these three areas of clear Federal authority -- the Treaty Making Power, the Interstate Commerce Clause and the Federal Property Management Powers -- have provided a firm basis upon which the Congress and the courts have established the role of the Federal Government as a full partner with the States in the conservation and management of wildlife and the habitats upon which they depend.
To further define and clarify this "full partner" relationship, the Department of the Interior, in 1983, developed and published in the Federal Register (48 FR 54) a "Fish and Wildlife Policy: State-Federal Relationships" that spells out in more detail how this partnership works. Although this is a policy statement, based on the Department's interpretation of Federal and State statutory authorities, rather than a law or formal legal opinion, it has proven helpful in minimizing duplication of effort and defining areas of primary responsibility.
A. Introduction. Persons interested in wildlife conservation and management, particularly those working in these fields, usually are familiar with the significant details of most relevant domestic laws. However, this frequently is not the case for the international treaties and conventions upon which laws that convey Federal authority are based.
As would be expected, in view of the 60-plus year timespan between the earliest and the most recent of these treaties, the points of concern they address and the authorities and responsibilities they assign vary considerably from document to document. However, these authorities and responsibilities tend to be cumulative rather than conflictive and, when read in association with each other, provide a comprehensive array of responsibility and authority for Federal involvement in the conservation and management of wildlife and the habitats upon which they depend.
Some aspects of a few treaties as they relate to certain areas of interest to the Service are touched upon briefly below.
B. Migratory Bird Management.
(1) The need for international cooperation in conserving wild birds that cross national boundaries was recognized and provided for nearly three quarters of a century ago when the United States and the United Kingdom (on behalf of Canada) negotiated a treaty dealing with this subject. The Government of the United States now is Party to five international treaties that deal with the conservation and management of "migratory birds:"
(a) the 1916 "Convention for the Protection of Migratory Birds" between the U.S. and the United Kingdom (on behalf of Canada);
(b) the 1936 "Convention for the Protection of Migratory Birds and Game Mammals" between the U.S. and the United Mexican States;
(c) the 1972 "Convention for the Protection of Migratory Birds and Birds in Danger of Extinction and Their Environment" between the U.S. and Japan; and
(d) the 1976 "Convention Concerning Conservation of Migratory Birds and Their Environment" between the U.S. and the Union of Soviet Socialist Republics.
(e) the 1940 "Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere," to which the United States and approximately 18 other Western Hemisphere nations are Party, also includes "migratory birds" among the resources it is intended to conserve.
(2) Definition of "migratory bird" -- Just as the points of concern addressed by these 5 treaties expanded over time and as the awareness of the need for international cooperation on as broad a front as possible became more comprehensive, so too did the definition of just what birds were to be covered by the treaties.
(a) The 1916 US/UK (Canada) treaty specified, in its text, that certain Families (Anatidae, Gruidae, Rallidae Limicolae and Columbidae) and a number of species or general groups (such as "thrushes" and "all other perching birds which feed entirely or chiefly on insects") were to be covered.
(b) The 1936 US/Mexico treaty recognized the limitation of such a system and specified some 31 Families in the text. By indicating Families rather than individual species or sub-species, the size of the list was made more manageable and continual questions concerning current taxonomy were reduced. The treaty also provided for the addition of ". . . Others which the Presidents of the United States of America and the United Mexican States may determine by common agreement . . ." This option was exercised in 1972 when an additional 31 Families were added to those receiving consideration under this treaty.
(c) As would be expected for a treaty covering potentially as vast an area as does the 1940 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, the definition of "migratory bird" contained therein is very broad: ". . . Birds of those species, all or some of whose individual members, may at any season cross any of the boundaries between the American countries . . ."
(d) The 1972 US/Japan treaty expands the definition further by recognizing the concept of "species or sub-species in common", and contains more specific criteria for placement of a taxon on its Annex and defines "migratory bird" as:
(i) The species of birds for which there is positive evidence of migration between the two countries from the recovery of bands or other markers; and
(ii) The species of birds with subspecies common to both countries, or, in the absence of subspecies, the species of birds common to both countries. the identification of these species and subspecies shall be based upon specimens, photographs or other reliable evidence . . .(e) Finally, the 1976 US/USSR treaty further broadens the definition of a "migratory bird" to include:
(i) The species or subspecies of birds for which there is evidence of migration between the Soviet Union and the United States derived as a result of banding, marking or other reliable scientific evidence; or
(ii) The species or subspecies of birds, populations of which occur in the Soviet Union and the United States and have common flyways or common breeding, wintering, feeding, or molting areas, and for these reasons there exists or could exist an exchange of individuals between such populations . . .These species and subspecies are listed, by Family, on an Appendix to the Convention. To minimize bureaucratic, legalistic or taxonomic quibbles over whether a given taxon was to be considered a "migratory bird" under the terms of the treaty, Article VII specifies:
In addition to those species and subspecies of birds named on the "Migratory Birds" Appendix, each Contracting Party may implement within the areas under its jurisdiction or with regard to any citizen or person subject to its jurisdiction, as it deems appropriate and necessary, any or all of the protective measures under this Convention for any species or subspecies of birds not listed in the "Migratory Birds" Appendix but belonging to the same Family as a species or subspecies listed in the "Migratory Birds" Appendix . . .
(f) Thus, in recognition of the need to provide as broad authority as possible to ensure the conservation of wild birds, the legal definition of "migratory bird" has expanded far beyond the limited concept of a bird that periodically moves between widely separated breeding and wintering grounds in a classical migration. The current definition recognizes that wild birds move between political jurisdictions; that nations have birds "in common" and that there exist valid reasons to focus cooperative national or international attention on the conservation of birds beyond situations related strictly to the migratory habits of some species.
As a result, virtually all birds found within the United States with the exception of the Galliformes (grouse, quail, and their allies which are highly sedentary game species and all of which are intensely managed by State wildlife agencies), the Psittiformes (parrots and their allies) and introduced, exotic species such as the rock dove, common starling and house sparrow receive Federal protection. A consolidated list of such species is published and periodically updated in Part 10.13 of the Code of Federal Regulations.
(3) Regulation of "Taking" -- All the treaties that deal with wild bird conservation and management recognize that unregulated killing, whether for commercial or other purposes, is a threat to the well being of migratory bird populations. Each of the treaties provides authority and responsibility to ensure that any allowed killing of "migratory birds" is permitted with the continuing welfare of the species as the primary consideration.
(a) The 1916 US/UK (Canada) treaty specifies that:
The ". . . close season on migratory insectivorous birds shall continue throughout the year . . .";
"The close season on migratory game birds shall be between March 10 and September 1 . . . The season for hunting shall be further restricted to such period not exceeding three and one-half months . . .";
The ". . . taking of nests or eggs of migratory . . . birds . . . except for scientific or propagating purposes . . ." is prohibited;
The "shipment or export of migratory birds or their eggs shall be restricted . . ."; and
Exceptions may be permitted under certain circumstances, for certain purposes and in accordance with laws, regulations and permits.(b) The 1936 US/Mexico treaty reinforces most of the provisions of the US/UK treaty and adds a prohibition against ". . . hunting from aircraft . . ." The 1940 Western Hemisphere Convention simply charges the Contracting Parties to ". . . adopt appropriate measures for the protection of migratory birds of economic or aesthetic value . . ."
(c) The 1972 US/Japan treaty prohibits:
The "taking" of " . . . migratory birds or their eggs . . ."; or
The " . . . sale, purchase or exchange of these birds or their eggs, taken illegally . . ." as well as ". . . the products thereof or their parts . . ."This treaty authorizes exceptions to the prohibition on "taking" ". . . in accordance with the laws and regulations of the . . ." Parties to the Convention and:
For scientific, educational, propagative or other specific purposes not inconsistent with the objectives of this Convention;
For the purpose of protecting persons and property;
During open hunting seasons established in accordance . . . with the Convention;
With respect to private game farms; or
. . . by Eskimos, Indians, and indigenous peoples of the Trust Territory of the Pacific Islands for their own food and clothing . . .The treaty also authorizes the establishment of open hunting seasons but adds the criterion that such seasons ". . . shall be set so as to avoid their principal nesting seasons and to maintain their populations in optimum numbers . . ."
(d) The 1976 US/USSR Convention also contains most of the prohibitions of the earlier treaties and adds:
a prohibition on the "collection of the nests . . . or disturbance of nesting colonies . . ." of migratory birds; and
includes nests among the items for which the sale, purchase, exchange, import or export are prohibited.As with those earlier treaties, provision is made for exceptions to the prohibited acts " . . . on the basis of laws, decrees or regulations of the respective Contracting Parties in the following cases:
For scientific, educational, propagative, or other specific purposes not inconsistent with the principles of this Convention;
For the establishment of hunting seasons in accordance with . . ." the Convention;
For the taking or collection of migratory birds and their eggs by the ". . . indigenous inhabitants of the Chukchi and Koryaksk national regions, the Commander Islands and the State of Alaska for their own nutritional and essential needs . . ."Those needs are to be determined by the designated "Competent Authority" for each country and the granting of authority for such taking is permissive rather than mandatory. This language was inserted at the request of the Soviets, neither the US/UK (Canada), nor the US/Mexican treaty contains a similar provision and there are questions about the compatibility of the language in the US/Japan Treaty. Therefore, the question of whether the US (if it chose to implement this exception) could permit under one treaty that which it has agreed to prohibit under others would pose an interesting conundrum for the legal profession. If such an exception were provided, the Convention requires such collecting be permitted only during specific seasons and requires such seasons to ". . . be set so as to provide for the preservation and maintenance of stocks of migratory birds . . ."
(e) Thus, with regard to "migratory birds," as that term is defined, these treaties require and authorize the Federal Government to prohibit or regulate the:
"taking" of such birds, their eggs or nests or the disturbance of their nesting colonies; or
sale, purchase, exchange, import or export of such birds, their eggs, nests or parts or products derived therefrom.Exceptions can be made for certain, specified purposes and provision is made for establishing hunting seasons for certain migratory birds. However those seasons must:
avoid the principal nesting seasons;
be set and regulated so as to maintain the hunted species at optimum numbers;
must fall between September 10 and the following March 1; and
cannot exceed 3 1/2 months.C. Endangered Species.
(1) The need for international cooperation in preventing the avoidable extinction of a species formally was recognized at the same time as was the need for such cooperation in the conservation of migratory birds. Indeed, it was concern over the former that stimulated action toward the latter.
The preamble to the 1916 US/UK (Canada) treaty recognizes that many species of birds that ". . . in the course of their annual migrations traverse certain parts of the United States and the Dominion of Canada . . . are . . . in danger of extermination . . ." and that the two countries ". . . being desirous of . . . insuring the preservation of such migratory birds . . . have resolved to adopt some uniform system of protection which shall effectively accomplish such objects . . ." The authorities and responsibilities provided by the treaty were intended to enable the two nations to cooperate in actions toward that end.
This concern was reiterated in the 1936 US/Mexico treaty which specifies that ". . . In order that the species may not be exterminated . . . (t)he . . . parties agree to establish laws, regulations and provisions . . ." which would prevent such from happening and enable the establishment of management regimes for "migratory birds" and certain game mammals.
(2) The 1940 "Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere" carried this concern a step farther and provided for the development of an "Annex of Wild Fauna and Flora" the protection of which ". . . is declared to be of special urgency and importance . . ." and specified that such taxa ". . . shall be protected as completely as possible, and their hunting, killing, capturing, or taking, shall be allowed only with the permission of the appropriate government authorities in the country. Such permission shall be granted only under special circumstances, in order to further scientific purposes, or when essential for the administration of the area in which the animal or plant is found . . ."
Thus was established the first treaty obligation of the U.S. to develop and maintain a legally significant list of taxa analogous to the "List of Threatened or Endangered Species" that would be developed over 30 years later with passage of the Endangered Species Act of 1973. Indeed, it was the existence of this Annex that removed questions from the minds of some over the Constitutionality of authorities contained in that law.
This treaty also provided for establishment of a category of "Nature Monuments" which denote: ". . . Regions, objects, or living species of flora or fauna of aesthetic, historic, or scientific interests to which strict protection is given. The purpose of 'Nature Monuments' is the protection of a specific object, or a species of flora or fauna, by setting aside an area, an object, or a single species, as an inviolate nature monument, except for duly authorized scientific investigations or government inspection . . ." (emphasis added).
The concept embodied in that language provided the model for section 7 of the Endangered Species Act of 1973, which prohibits any action "authorized, funded or carried out" by any Federal agency and which would jeopardize the continued existence or the "critical habitat" of any species the Secretary had determined to be "Threatened or Endangered."
(3) By 1972 when the US/Japanese "Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment" was concluded, the concern for international cooperation in the conservation of threatened species had risen to the point that such was identified as one of the primary purposes of that Convention. All the protective provisions of the treaty apply to birds either nation has determined to be "in danger of extinction" and, additionally, both Parties ". . . agree that special protection is desirable for the preservation of species or subspecies of birds which are in danger of extinction . . ." The Parties each have determined, exchanged and incorporated into the treaty "Lists of Endangered Species of Birds" found within their respective areas of jurisdiction and agreed further that each ". . . shall inform the other . . . of such determination, and of any cancellation thereafter of such determination . . ."
(4) The 1972 "Convention Concerning the Protection of the World Cultural and Natural Heritage" which entered into force in 1975 and to which some 112 nations, including the United States, now are Party, recognizes that ". . . deterioration or disappearance of any item of the . . . natural heritage constitutes a harmful impoverishment of the heritage of all nations of the world . . ."
That treaty carries the concept of endangered species conservation a significant step farther by defining "natural heritage" to include " . . . precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation . . ." Article 5 then charges member states to: ". . . endeavor, in so far as possible, and as appropriate . . ." to ". . . work out such operating methods as will make the State capable of counteracting the dangers that threaten its . . . natural heritage . . ."
Article 6 requires that each Party ". . . undertakes not to take any deliberate measures which might damage directly or indirectly the . . . natural heritage . . . situated on the territory of other . . . Parties . . ."
The convention provides for an elaborate process to provide international recognition to entities nominated for "Natural Heritage" status, establishes an internationally recognized List of such and creates a fund from which support to maintain and protect such heritages can be provided.
(5) International concern for cooperation in conserving threatened species probably climaxed with the successful negotiation, in 1973, of the "Convention on International Trade in Endangered Species of Wild Fauna and Flora" (CITES). The conference at which this treaty was negotiated was hosted by the Government of the United States in response to section 5(b) of the Endangered Species Conservation Act of 1969, which directed the Secretaries of the Interior and State, in order ". . . (t)o assure the worldwide conservation of endangered species . . ." to ". . . seek the convening of an international ministerial meeting on fish and wildlife . . ." included in the business of which ". . . shall be the signing of a binding international convention on the conservation of endangered species . . ."
Approximately 80 nations participated in the negotiation of the CITES and some 107 now participate in its implementation. Over the years an inference has surfaced that the purpose of the CITES is to facilitate rather than regulate trade in wildlife products and it frequently is referred to as "trade treaty." However, the March 2, 1973 statement of Mr. Russell Train (then Chairman of the President's Council on Environmental Quality and the Head of the US Delegation to the conference at which CITES was negotiated) at the conclusion of that conference begins with the sentence: "Today over 80 nations have signed the Final Act of an international conference to provide protection for endangered wildlife," thus clearly stating the purpose of the CITES.
This treaty recognizes that over-exploitation for the international trade poses a serious threat to many wild floral and faunal taxa. While the CITES is not intended to eliminate trade in wildlife, it is intended to eliminate trade as a threat to wildlife. To accomplish this, the CITES establishes a mechanism whereby three Appendices (containing floral and faunal taxa) are produced and maintained. The Appendix upon which a taxon is placed depends, in part, upon the degree of threat that taxon faces. In turn, the degree of restriction upon international trade in such taxa or the parts or products thereof depends, in part, upon which Appendix they have been placed. Implicit in these international obligations is the responsibility and authority for Party nations, including the United States, to:
monitor the conservation status of all wild fauna and flora within the territory under their jurisdiction so that the reliability and integrity of these Appendices can be maintained;
exercise strict control over the import, export, re-export and introduction from the sea of specimens of taxa on the Appendices; and
interact with other nations Party to the CITES in a cooperative effort to monitor the conservation status of taxa within their territories and minimize the adverse aspects of trade upon wild fauna and flora.To facilitate this, the CITES established an International Secretariat to help Party nations coordinate their efforts and requires each Party to establish within its governmental infrastructure:
a "Management Authority" to oversee the permitting and other legal and technical aspects; and
a "Scientific Authority" charged with determining and monitoring the conservation status of taxa on the Appendices or those which become candidates for such placement, as well as ensuring that actions authorized by permits issued by the Management Authority are not detrimental to the survival of those taxa.(6) In 1976 the United States and the Union of Soviet Socialist Republics signed the "Convention Concerning Conservation of Migratory Birds and Their Environment" This treaty also recognized that ". . . certain species of birds in both countries are endangered and in need of particular protective measures . . ." All the provisions of the treaty apply to endangered birds and, in addition, the Parties agreed ". . . that, for the conservation of those species and subspecies of migratory birds which are in danger of extinction, special protective measures are necessary and should be taken . . . If one . . . Party has decided that a species, subspecies or distinct segment of a population of migratory bird is in danger of extinction, and has established special measures for its protection, the competent authority of that . . . Party shall inform the . . . other Party of that decision and of any subsequent modification of such decision . . . Upon notification, the other . . . Party will take into account such protective measures in the development of its management plans for the conservation of migratory birds . . ."
D. Exotic Species. Those drafting the various treaties also recognized that the introduction of species into ecosystems in which they had never before existed carried potential for significant damage to that ecosystem and should be done only under carefully regulated circumstances.
This concern first was recognized formally in the 1972 US/Japanese "Convention for the Protection of Migratory Birds and Birds in Danger of Extinction."
Article VI of that treaty charges both nations to ". . . Endeavor to take such measures as may be necessary to control the importation of live animals and plants which it determines to be hazardous to the preservation of (migratory or endangered) birds; and . . . Endeavor to take such measures as may be necessary to control the introduction of live animals and plants which could disturb the ecological balance of unique island environments . . ."
The 1976 US/USSR "Convention Concerning Conservation of Migratory Birds and Their Environment" expands this responsibility and authority to include authority to regulate the introduction of exotic animals or plants into the wild in areas other than island environments. Article IV (b) states ". . . each Contracting Party shall . . . Undertake measures necessary for the control of the import, export and establishment in the wild of live animals and plants that may be harmful to migratory birds or their environment . . ."
Therefore, the Government of the United States has committed itself to protect wildlife, their habitats and the ecological balance of unique island environments from damage by regulating the import, export, establishment, or introduction into the wild of species that do not naturally occur in the ecosystem into which they would be introduced. Further authority to meet this obligation with regard to both American and species from other countries is provided by Section 1 of the Act of May 25, 1900 (the original "Lacey Act", 16 U.S.C. 701).
E. Other Species.
(1) In addition to providing authority, responsibility and means of international cooperation in the conservation and management of migratory birds, endangered species and exotic species, treaties to which the United States is Party also recognize such needs with regard to other taxa.
The 1936 US/Mexico "Convention for the Protection of Migratory Birds and Game Mammals" provides the authority and responsibility to regulate the import and export of certain game mammals and requires ". . . The prohibition of hunting from aircraft . . ."
President Roosevelt's 1942 Proclamation of the entry-into-force of the 1940 "Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere" provided a multitude of Federal authorities and responsibilities relating to the conservation of other taxa. Among other things, it:
obligates the Parties to ". . . prohibit hunting, killing and capturing of members of the fauna and destruction or collection of representatives of the flora in national parks except by or under the direction or control of the park authorities . . .";
charges the Parties with adopting, or proposing to their law making bodies the adoption of, ". . . suitable laws and regulations for the protection and preservation of flora and fauna within their national boundaries, but not included in the national parks, national reserves, nature monuments, or strict wilderness reserves . . ." provided for by the convention; and
provides for an Annex identifying species for which protection is ". . . declared to be of special urgency and importance . . ." Floral or faunal taxa on that Annex ". . . shall be protected as completely as possible, and their hunting, killing, capturing, or taking, shall be allowed only with the permission of the appropriate government authorities . . . under special circumstances, in order to further scientific purposes, or when essential for the administration of the area in which the animal or plant is found . . ." This Annex is maintained by the Pan American Union in Washington, D.C.(2) In the 1973 "Agreement on the Conservation of Polar Bears," the 5 circumpolar nations (Canada, Denmark, Norway, the USSR and the USA) within whose territory the polar bear occurs ". . . desiring to take immediate action to bring further conservation and management measures into effect . . ." agreed that the hunting, killing and capturing of polar bears should be prohibited except when the country within whose territory the bear is found allows it:
"For bona fide scientific purposes (emphasis in original);
by that Party for conservation purposes; or
to prevent serious disturbance of the management of other living resources, subject to forfeiture to that Party of the skins and other items of value resulting from such taking; or
by local people using traditional methods in the exercise of their traditional rights and in accordance with the laws of that Party; or
whenever poplar bears have or might have been subject to taking by traditional means by its nationals . . ."The treaty also specifies that ". . . skins and other items of value resulting from taking . . . shall not be available for commercial purposes . . . The use of aircraft and large motorized vessels for the purpose of taking polar bears shall be prohibited except where . . . such prohibition would be inconsistent with domestic laws . . ." and requires each Party to prohibit ". . . the exportation from, the importation and delivery into, and traffic within, its territory of polar bears or any part or product thereof taken in violation . . ." of the treaty.
F. Habitat Protection and Management.
(1) It soon became obvious to those concerned with international cooperation in the conservation and management of wildlife that unless suitable habitat was preserved, all other efforts would be to no avail. Language addressing this concern soon began to appear in wildlife oriented treaties.
(a) The 1936 US/Mexico "Convention for the Protection of Migratory Birds and Game Mammals" recognized this and called for ". . . The establishment of refuge zones in which the taking of . . . birds will be prohibited . . ."
(b) The 1940 "Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere" defined the following categories of protected areas and called upon the Parties to establish such areas and to manage them in accordance with the Convention:
National Parks -- Areas established for the protection and preservation of superlative scenery, flora and fauna of national significance which the general public may enjoy and from which it may benefit when placed under public control.
National Reserves -- Regions established for conservation and utilization of natural resources under government control, on which protection of animal and plant life will be afforded in so far as this may be consistent with the primary purpose of such reserves.
Nature Monuments -- Regions, objects, or living species of flora or fauna of aesthetic, historic or scientific interests to which strict protection is given. The purpose of nature monuments is the protection of a specific object, or a species of flora or fauna, by setting aside an area, an object, or a single species, as an inviolate nature monument, except for duly authorized scientific investigations or government inspection.
Strict Wilderness Reserves -- A region under public control characterized by primitive conditions of flora, fauna, transportation and habitation wherein there is no provision for the passage of motorized transportation and all commercial developments are excluded.
(c) The 1971 "Convention on Wetlands of International Importance especially as Waterfowl Habitat" is largely inspirational in nature. However, it establishes the "List of Wetlands of International Importance" and provides for periodic Meetings of the Parties that focus some international attention upon the importance of certain types of habitats and, thereby, encourage nations to give more consideration to problems facing such areas than they would have otherwise.
(d) The 1972 US/Japan "Convention for the Protection of Migratory Birds and Birds in Danger of Extinction and Their Environment" goes further and requires that "Each Contracting Party shall endeavor to establish sanctuaries and other facilities for the protection or management of migratory birds . . ."
(2)(a) The 1972 "Convention for the Protection of the World Cultural and Natural Heritage" takes several additional steps forward and defines "Natural Heritage" as:
natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;
geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation;
natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty . . .(b) Each nation Party to this Convention has obligated itself, with regard to the protection of the "Natural Heritage," among other things to:
develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage; (and)
take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage.(c) Article 6 provides that:
Whilst fully respecting the sovereignty of the States on whose territory the natural heritage is situated, and without prejudice to property rights provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.(d) This convention also establishes:
The States Parties undertake, in accordance with the provisions of this Convention, to give their help in the identification, protection, conservation and preservation of the natural heritage if the States on whose territory it is situated so request.
Each State Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the natural heritage . . . on the territory of other States Parties to this Convention.
the "World Heritage List" upon which entities designated as a part of the cultural and natural heritages are identified;(3)(a) The broadest authority and mandate for providing habitat for "migratory birds (as defined) is contained in the 1976 US/USSR Convention Concerning Conservation of Migratory Birds and Their Environment." That treaty, at Article IV charges and requires each Party to:
a "List of World Heritage in Danger" upon which are placed units of the "World Heritage" facing serious threats;
a Committee to administer the Convention; and
a "fund for the protection of the World Cultural and Natural Heritage of Outstanding Universal Value" called "The World Heritage Fund" and consisting of a trust fund within the United Nations Educational, Scientific and Cultural Organization intended to fund activities aimed at protecting The World Heritage.
Identify areas . . . of special importance to the conservation of migratory birds within the areas under its jurisdiction. Such identification may include areas which require special protection because of their ecological diversity or scientific value. These special areas will be included in . . . the Appendix . . . Each Contracting Party shall, to the maximum extent possible, undertake measures necessary to protect the ecosystems in those special areas . . . against pollution, detrimental alteration and other environmental degradation. (emphasis added)Note that these provisions are not necessarily limited to areas of importance to migratory birds but also may include areas of value due to their ecological diversity or scientific value.
That same Article also authorizes the Parties, by mutual agreement, to:
designate areas of special importance to the conservation of migratory birds outside the areas under their jurisdiction. These areas of special importance shall be included on . . . the . . . Appendix . . . Each Contracting Party shall, to the maximum extent possible, undertake measures necessary to ensure that any citizen or person subject to its jurisdiction will act in accordance with the principles of this Convention in relation to such areas. (emphasis added)(b) Article VII provides additional responsibility to ensure the continued availability of habitat for migratory birds and provides specific guidance as to how such habitat should be managed:
Each Contracting Party shall to the maximum extent possible, undertake measures necessary to establish preserves, refuges, protected areas, and also facilities intended for the conservation of migratory birds and their environment, and to manage such areas so as to preserve and restore the natural ecosystems.
G. Environmental Contamination.
(1) Increasing problems caused by man's technology and the resultant contamination of the environment made it clear that the traditional methods of conserving and managing wildlife provided for in earlier treaties were insufficient. In addition to drawing international attention to the need to conserve certain taxa or groups of taxa; ensuring the availability of habitat; providing authority to regulate the taking and commercialization of wild flora and fauna; and regulating the import, export and introduction of exotic species that may threaten native species, more recent treaties also recognize and provide authority and responsibility to address problems caused by environmental contamination or degradation.
The 1972 US/Japan "Convention for the Protection of Migratory Birds and Birds in Danger of Extinction and Their Environment" recognizes this concept in its title and requires each Party to ". . . Seek means to prevent damage to such birds and their environment, including, especially, damage resulting from pollution of the seas . . ."
(2)(a) The 1976 US/USSR "Convention Concerning Conservation of Migratory Birds and Their Environment" provides more specific and comprehensive authority and responsibilities. Article IV of that treaty requires, in part, that:
To the extent possible, the Contracting Parties shall undertake measures necessary to protect and enhance the environment of migratory birds and to prevent and abate the pollution or detrimental alteration of that environment.(b) Among other things, each Contracting Party shall:
Provide for the immediate warning of the competent authority of the other Contracting Party in case of substantial anticipated or existing damage to significant numbers of migratory birds or the pollution or destruction of their environment. The competent authorities of the Contracting Parties will establish necessary procedures for such warnings and will cooperate to the maximum possible degree in preventing, reducing or eliminating such damage to migratory birds and their environment and in providing for the rehabilitation of their habitat.(c) The competent authorities of the Contracting Parties may by mutual agreement designate areas of special importance to the conservation of migratory birds outside the areas under their jurisdiction. These areas of special importance shall be included on . . ." the Appendix to this convention. ". . . Each Contracting Party shall, to the maximum extent possible, undertake measures necessary to ensure that any citizen or person subject to its jurisdiction will act in accordance with the principles of this Convention in relation to such areas.
Undertake measures necessary for the control of the import, export and establishment in the wild of live animals and plants that may be harmful to migratory birds or their environment.
Identify areas of breeding, wintering, feeding, and molting which are of special importance to the conservation of migratory birds within the areas under its jurisdiction. Such identification may include areas which require special protection because of their ecological diversity or scientific value. These special areas will be included in the Appendix to this Convention . . . Each Contracting Party shall, to the maximum extent possible, undertake measures necessary to protect the ecosystems in those special areas . . . against pollution, detrimental alteration and other environmental degradation.
2.4 The Statutes.
A. Many provisions of treaties are self implementing. Others require implementing legislation which, in one form or another, has been enacted by the Congress. In addition, the Congress has established a multitude of responsibilities, authorities and programs as a result of statutes based generally upon three sources of Federal constitutional authority -- the Interstate Commerce Clause, the Federal Property Management Authority and the details of treaties negotiated in accordance with the Treaty Making Power. These statutes further define and expand upon those basic constitutional authorities and, together, shape the programs and define the activities carried out by the U.S. Fish and Wildlife Service.
B. The number, complexity and diversity of those statutes and the collective authorities and responsibilities they convey are summarized in the handbook "Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service." (101 FW 1.4) A brief scan of that handbook, in the context of the summaries of the treaties above, will demonstrate Federal authority and responsibility for carrying out -- as a full partner with the States, as appropriate -- a breadth of activities including, but not necessarily limited to, the:
(1) conservation, management and/or continual monitoring of the conservation status of wildlife (both vertebrate and invertebrate) found within the territory of the United States;
(2) global monitoring of species, subspecies or populations of wildlife or plants to identify those threatened with extinction or approaching or recovering from that condition, the active protection and restoration of such taxa found within the territory of the United States and assisting other nations protect and restore those found within their territories;
(3) enforcement of laws regulating the import, export and interstate or international commerce in wildlife and certain plants and the parts or products thereof and the "taking" of "migratory birds", plants or wildlife on Federal lands and/or "threatened or endangered species" of wild fauna or flora;
(4) protection, through designation, of habitat that is "critical" to the survival of a "threatened or endangered species," or of "special importance" to the conservation of "migratory birds," or which has been determined to be a part of the "Natural or Cultural Heritage" of the United States, or which meets certain other criteria;
(5) acquisition, protection and/or management of lands, waters or interests therein as units of systems of National Wildlife Refuges, National Fish Hatcheries, the Wilderness System or other specified categories;
(6) protection of wildlife and its habitat from hazards posed by pollution, environmental contamination or other forms of degradation;
(7) regulation of the import, export or introduction into the wild of living American or foreign wildlife;
(8) evaluation of the impacts of water development and certain other Federally funded or authorized projects upon wildlife and its habitat and the provision of advice as to how any adverse impacts might be minimized, mitigated or how such projects might enhance those resources;
(9) provision of advice to other Federal agencies, Indian tribes or foreign governments concerning the conservation of wildlife or habitat on lands they control;
(10) formal training of U.S. Fish and Wildlife Service personnel, personnel of other Federal or State agencies or foreign governments or certain others (including temporary exchanges of personnel) in the field of wildlife/habitat conservation;
(11) "environmental education" or provision of other information intended to enhance the general public's knowledge or enjoyment of wildlife and its conservation, including hunter safety education;
(12) cooperation and the exchange of information with other nations in the general area of wildlife or habitat conservation and management; and
(13) the conduct of research in any of these areas.