{"id":3024,"date":"2021-03-11T17:32:22","date_gmt":"2021-03-11T22:32:22","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/elr\/?p=3024"},"modified":"2025-08-04T16:53:43","modified_gmt":"2025-08-04T20:53:43","slug":"the-origins-of-federal-wildlife-regulation-under-the-commerce-clause","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/elr\/2021\/03\/11\/the-origins-of-federal-wildlife-regulation-under-the-commerce-clause\/","title":{"rendered":"The Origins of Federal Wildlife Regulation Under the Commerce Clause"},"content":{"rendered":"

by Kathryn E. Kovacs, Professor, Rutgers Law School, The State University of New Jersey. \u00a9Kathryn E. Kovacs 2021.<\/em><\/p>\n

This post is part of the\u00a0<\/em>Environmental Law Review Syndicate<\/a>.<\/p>\n

June 8, 2020, marked the eightieth anniversary of the Bald Eagle Protection Act\u2014the first federal statute to rely on the Commerce Clause for the authority to prohibit the taking of wildlife. Its enactment marked a turning point in federal wildlife law. The Eagle Act\u2019s forgotten history supports the Ninth Circuit\u2019s conclusion that the Eagle Act is within the scope of Congress\u2019s Commerce Clause power,1<\/a><\/sup>United States v. Bramble, 103 F.3d 1475, 1480\u201382 (9th Cir. 1996).<\/span> as well as the many federal courts of appeals that have come to the same conclusion about the Endangered Species Act.2<\/a><\/sup>See<\/em> People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 852 F.3d 990, 1007 (10th Cir. 2017) (discussing prior cases).<\/span> This history should leave no doubt that Congress may regulate the taking of wildlife.<\/p>\n

I. The Migratory Bird Treaty Act<\/h3>\n

The \u201ccautious first step in the field of federal wildlife regulation\u201d was the Lacey Act of 1900. 3<\/a><\/sup>Michael J. Bean & Melanie J. Rowland, The Evolution of National Wildlife Law 15 (3d ed. 1997); Lacey Act, ch. 553, 31 Stat. 187 (1900) (codified as amended at 16 U.S.C. \u00a7\u00a7 3371\u20133378).<\/span> Reflecting the narrow view of Congress\u2019s power to regulate wildlife under the Commerce Clause that prevailed at the time,4<\/a><\/sup>See<\/em> Bean & Rowland, supra<\/em> note 4, at 14\u201315; Geer v. Connecticut, 161 U.S. 519 (1896) (holding a state statute prohibiting the transportation of game out of state did not violate Commerce Clause).<\/span> the key provision of the Lacey Act merely prohibited the interstate transportation of wildlife killed in violation of state law.5<\/a><\/sup>31 Stat. 187 \u00a7 3 (1900) (codified as amended at 16 U.S.C. \u00a7 3372(a)(2)(A)).<\/span> The Act also empowered the Secretary of Agriculture to \u201cadopt such measures as may be necessary\u201d for \u201cthe preservation, distribution, introduction, and restoration of game and other wild birds,\u201d but subjected that power to the laws of the states.6<\/a><\/sup>Id.<\/em> \u00a7 1 (codified as amended at 16 U.S.C. \u00a7 701).<\/span><\/p>\n

Congress\u2019s first attempt to prohibit the hunting of migratory birds directly under the Commerce Clause, the Migratory Bird Act of 1913, fell prey to two lower federal courts.7<\/a><\/sup>United States v. Shauver, 214 F. 154 (E.D. Ark. 1914), appeal dismissed<\/em> 248 U.S. 594 (1919); United States v. McCullagh, 221 F. 288 (D. Kan. 1915).<\/span> The government appealed in one of the cases and argued it twice in the Supreme Court.8<\/a><\/sup>See<\/em> Bean & Rowland, supra<\/em> note 4, at 17.<\/span> \u201cApparently fearful of an adverse decision,\u201d9<\/a><\/sup>Id.<\/span> the government entered into a treaty with Canada for the protection of migratory birds,10<\/a><\/sup>Convention Between the United States and Great Britain for the Protection of Migratory Birds, Gr. Brit.-U.S., Aug. 16, 1916, 39 Stat. 1702.<\/span> and Congress implemented the treaty in the Migratory Bird Treaty Act of 1918 (MBTA).11<\/a><\/sup>Migratory Bird Treaty Act, ch. 128, 40 Stat. 755 (1918) (codified as amended at 16 U.S.C. \u00a7\u00a7 703\u2013711).<\/span> The Supreme Court then dismissed the challenge to the 1913 Act12<\/a><\/sup>Shauver<\/em>, 248 U.S. at 594 (1919).<\/span> and later upheld the MBTA as a valid exercise of the treaty power.13<\/a><\/sup>Missouri v. Holland, 252 U.S. 416 (1920).<\/span> Neither the treaty with Canada, however, nor a subsequent treaty with Mexico, which followed in 1936,14<\/a><\/sup>Convention Between the United States and Mexico for the Protection of Migratory Birds and Game Mammals, Mex.-U.S., Feb. 7, 1936, 50 Stat. 1311. <\/span> included raptors. Thus, at the time, the MBTA did not protect raptors.15<\/a><\/sup>Now it does. See Migratory Bird Treaty Act Protected Species<\/em>, U.S. Fish & Wildlife Serv., https:\/\/perma.cc\/U5AW-DQVF.<\/span><\/p>\n

II. Early Efforts to Protect Eagles<\/h3>\n

Congress first considered proposals to extend statutory protection to the bald eagle in the 1930s. The Senate passed an eagle protection bill on April 7, 1930, that echoed the terms of the MBTA in making it unlawful<\/p>\n

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for any person to take, kill, or capture, attempt to take, kill, or capture, possess, offer for sale, sell, offer to purchase, purchase, deliver for shipment, ship, cause to be shipped, deliver for transportation, transport, cause to be transported, carry, or cause to be carried by any means whatever, receive for shipment, transportation, or carriage, or to export, at any time or in any manner, any bald eagle (the emblem of the United States and commonly known as the American eagle) or any part thereof, or the nest or egg of any such bird, except for scientific, propagating, or exhibition purposes, or in defense of wild life or agricultural or other interests, as permitted by regulations of the Secretary of Agriculture.16<\/a><\/sup>S. 2908, 71st Cong. (1930); see also<\/em> 72 Cong. Rec. 6612 (1930).<\/span><\/p>\n<\/blockquote>\n

The House Committee on Agriculture held a hearing on an identical bill.17<\/a><\/sup>American Eagle Protection, Hearing on H.R. 7994 Before the H. Comm. on Agric., 71st Cong. (1930).<\/span> At the hearing, committee members inquired about the bill\u2019s constitutionality. Dr. T.S. Palmer, President of the Audubon Society of the District of Columbia, testified that Congress had the authority to \u201cexercise [its] latent power . . . to protect an emblem of sovereignty of the United States.\u201d18<\/a><\/sup>Id.<\/em> at 14.<\/span> The bill died in committee.<\/p>\n

The Senate passed another eagle-protection bill in 1935, which provided that<\/p>\n

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whoever . . . without being permitted to do so as hereinafter provided, shall take, possess, sell, purchase, offer to sell or purchase, transport, or export, at any time of in any manner, any bald eagle, commonly known as the \u201cAmerican eagle\u201d, alive or dead, or any part, nest, or egg thereof, shall be fined not more than $100 or imprisoned not more than six months, or both.19<\/a><\/sup>S. 2990, 74th Cong. \u00a7 1 (1935); see also<\/em> 79 Cong. Rec. 10,061 (1935).<\/span><\/p>\n<\/blockquote>\n

The bill would have allowed the Secretary of Agriculture to issue regulations to permit eagle takings with a determination<\/p>\n

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that it is compatible with the preservation of the bald eagle as a species. . . [and is] for the scientific or exhibition purposes of public museums, scientific societies, or zoological parks, or that it is necessary to permit the taking of such eagles for the protection of wildlife or agricultural or other interests.20<\/a><\/sup>See<\/em> S. 2990 \u00a7 2.<\/span><\/p>\n<\/blockquote>\n

The House referred a similar bill to the Committee on Agriculture,21<\/a><\/sup>79 Cong. Rec. 1456 (1935) (referring H.R. 5271, 74th Cong. (1935)).<\/span> which in turn asked the Attorney General for an opinion on the bill\u2019s constitutionality.22<\/a><\/sup>Miscellaneous Wildlife Conservation Legislation, Hearing on H.R. 4832 Before the H. Comm. on Agric., 76th Cong. 55 (1940) [hereinafter 1940 Hearing].<\/span> The Attorney General declined to issue a formal opinion, but pointed the Committee to two cases. In one, a district court held that the Migratory Bird Act exceeded Congress\u2019s power under the Commerce Clause.23<\/a><\/sup>United States v. McCullagh, 221 F. 288 (D. Kan. 1915).<\/span> In the other, the Supreme Court held that the Migratory Bird Act did not conflict with and hence did not preempt a state duck hunting law.24<\/a><\/sup>Carey v. South Dakota, 250 U.S. 118 (1919).<\/span> The Committee determined that the bill would be unconstitutional and did not consider it further.25<\/a><\/sup>1940 Hearing, supra<\/em> note 22, at 56, 63\u201365.<\/span><\/p>\n

III. Changing Views of the Commerce Clause<\/h3>\n

Soon thereafter, the federal courts\u2019 view of the Commerce Clause power over wildlife began to change. In Cochrane v. United States<\/em>26<\/a><\/sup>92 F.2d 623 (7th Cir. 1937).<\/span> and Cerritos Gun Club v. Hall<\/em>,27<\/a><\/sup>96 F.2d 620 (9th Cir. 1938).<\/span> the courts of appeals upheld provisions of the MBTA that exceeded the terms of the migratory bird treaties as valid exercises of Congress\u2019s Commerce Clause power.28<\/a><\/sup>92 F.2d at 626\u201327; 96 F.2d at 627. The Supreme Court did not endorse that view until it decided Andrus v. Allard<\/em>, 444 U.S. 51 (1979).<\/span> Both courts relied on the Supreme Court\u2019s 1926 decision in Thornton v. United States<\/em>,29<\/a><\/sup>271 U.S. 414 (1926).<\/span> which upheld convictions for conspiracy to assault federal employees who were attempting to dip the defendants\u2019 cattle (that is, submerge them in pesticide) to prevent the spread of splenetic fever.30<\/a><\/sup>Id. at 418. The defendants actually killed one federal employee and blew up facilities. Id.<\/em> at 422.<\/span> Congress charged the Bureau of Animal Industry (BAI) with combating disease among domestic animals using what we would now call a \u201ccooperative federalism\u201d model.31<\/a><\/sup>See<\/em> Sam Kalen, Muddling Through Modern Energy Policy: The Dormant Commerce Clause and Unmasking the Illusion of an Attleboro Line<\/em>, 24 N.Y.U. Env\u2019t L.J. 283, 293 n.46 (2016).<\/span> The defendants argued that their convictions exceeded the scope of the Commerce Clause because the cattle at issue were not intended to be in interstate commerce, but merely wandered across the Florida-Georgia border on their own.32<\/a><\/sup>271 U.S. at 425.<\/span> The Supreme Court rejected that argument, reasoning that the BAI employees\u2019 actions were \u201cwere all part of the measure of quarantine reasonably adapted to prevent the spread of contagion in and by interstate commerce.\u201d33<\/a><\/sup>Id.<\/em> at 424.<\/span> Under existing precedent, preventing such a burden on commerce was within the Commerce Clause authority.34<\/a><\/sup>Id.<\/em> at 425 (citing United States v. Ferger, 250 U.S. 199 (1919)).<\/span> Whether the cattle had been transported across the border or wandered there on their own made no difference to the Court; the wandering was \u201cmade possible by the failure of the owners to restrict their ranging, and is due, therefore, to the will of their owners.\u201d35<\/a><\/sup>Id.<\/em><\/span>
In Cochrane<\/em>, the Seventh Circuit upheld federal regulations that limited duck hunting methods, specifically baiting.36<\/a><\/sup>Cochrane v. United States, 92 F.2d 623, 627 (7th Cir. 1937).<\/span> The appellants argued that the regulations exceeded the terms of the migratory bird treaties and thus violated the Tenth Amendment.37<\/a><\/sup>Id.<\/em> at 626. <\/span> The court rejected that argument, reasoning that \u201cthe authority to deprive the hunters of any open season [under the MBTA] carries with it the power to provide for a limited open season for limited purposes only<\/em>. . . . [T]he greater power necessarily carries with it the lesser power.\u201d38<\/a><\/sup>Id.<\/em><\/span> The court further held that the regulations were a proper exercise of the commerce power, finding the case \u201cnot readily distinguishable\u201d from Thornton<\/em>.39<\/a><\/sup>Id.<\/em> at 627. Unfortunately, the court provided no explanation for that conclusion.<\/span> The court rejected the appellants\u2019 assertion that the state\u2019s property interest in migratory birds precluded federal regulation:<\/p>\n

It is unbelievable that the framers of the Constitution intended to leave this form of valuable property, which did not vest in the individual and which could not be controlled by the state, unprotected and fated to total destruction. It is not a matter of sentiment but of common sense.40<\/a><\/sup>Id.<\/em> at 627; see also id.<\/em> (\u201cHere a national interest of very nearly the first magnitude is involved.\u201d) (quoting Missouri v. Holland, 252 U.S. 416, 435).<\/span><\/p>\n

The Ninth Circuit in Cerritos Gun Club<\/em> followed Cochrane<\/em>, but added a lengthy disquisition on migratory birds\u2019 migration patterns, threats to survival, domestication, and ownership.41<\/a><\/sup>Cerritos Gun Club v. Hall, 96 F.2d 620, 623\u201329 (9th Cir. 1938).<\/span> The court relied on Thornton<\/em> directly, reasoning that, because ducks can be domesticated, the failure to domesticate them leaves them free to cross state lines, thus subjecting them to the Commerce Clause power.42<\/a><\/sup>Id.<\/em> at 625\u201327.<\/span> In other words, the Ninth Circuit read Thornton<\/em> not as upholding a statutory system designed to prevent disease from burdening interstate commerce in domestic animals, but as holding that \u201ctraveling of . . . animals following their instinct to range [across state lines] constitutes the interstate character of their movements.\u201d43<\/a><\/sup>Id.<\/em> at 626.<\/span> In any event, both Cochrane<\/em> and Cerritos Gun Club<\/em> upheld migratory bird regulations as proper exercises of the Commerce Clause power.<\/p>\n

IV. The Eagle Act<\/h3>\n

By the time Representative Charles Russell Clason introduced H.R. 4832 on March 7, 1939,44<\/a><\/sup>H.R. 4832, 76th Cong. (1939).<\/span> the Commerce Clause winds had shifted. Clason\u2019s bill was designed to extend to the bald eagle \u201ccomplete protection against being taken in any way,\u201d except that the Secretary of Agriculture would be authorized to issue permits for museums and eagles that were causing \u201ctrouble.\u201d45<\/a><\/sup>1940 Hearing, supra<\/em> note 22, at 69 (statement of Hon. Charles Russell Clason).<\/span> His bill to protect the bald eagle was referred to the Committee on Agriculture,46<\/a><\/sup>H.R. 4832.<\/span> which held a hearing on March 11, 1940.47<\/a><\/sup>1940 Hearing, supra<\/em> note 22.<\/span> At the hearing, Clason quoted from a letter from the Department of Agriculture explaining that the bald eagle was threatened with extinction due to trophy hunting and egg poaching.48<\/a><\/sup>Id.<\/em> at 51, 53 (statement of Hon. Charles Russell Clason).<\/span> He opined that Congress had the authority to protect the bald eagle under the Commerce Clause, relying on the court of appeals\u2019 decisions in Cochrane<\/em> and Cerritos Gun Club<\/em>.49<\/a><\/sup>Id.<\/em> at 56\u201357, 63\u201365.<\/span><\/p>\n

Not surprisingly, given the backdrop of fascist belligerence in Europe, patriotism permeated the hearings. The prior fall, Hitler had invaded Poland, and Great Britain and France had declared war on Germany. Clason asserted that the bald eagle needed protection \u201c[f]or patriotic reasons, for humane reasons and in order that the greatest bird which has made its home widely throughout the United States may be preserved for posterity.\u201d50<\/a><\/sup>Id.<\/em> at 49.<\/span> Clason felt that the bald eagle\u2019s status as \u201cthe Emblem of the United States\u201d was \u201cmore than sufficient grounds for the enactment\u201d of the bill.51<\/a><\/sup>Id.<\/em><\/span> Maud Phillips, President of Blue Cross Animal Relief, hit the same patriotic theme. She asserted that Americans were united around \u201cindividual liberty,\u201d52<\/a><\/sup>Id.<\/em> at 79 (statement of Maud Phillips, President, Blue Cross Animal Relief).<\/span> and as they became \u201cmore liberty conscious\u201d they became \u201cmore eagle-minded.\u201d53<\/a><\/sup>Id.<\/em> at 76. <\/span> She stated that the bald eagle\u2019s \u201cruthless destruction is a violation of trust tending to weaken loyalty to those fundamental principles of constitutional freedom for which it stands.\u201d54<\/a><\/sup>Id.<\/em> at 75.<\/span> Like the flag, Ms. Phillips believed that the bald eagle should be protected from \u201cdesecration.\u201d55<\/a><\/sup>Id.<\/em> at 76\u201377.<\/span><\/p>\n

As he had in 1930, Dr. T.S. Palmer, President of the District of Columbia Audubon Society, testified that Congress has the power \u201cto select an emblem[,] . . . to command respect for that emblem, and . . . to encourage patriotism among its citizens.\u201d56<\/a><\/sup>Id.<\/em> at 80 (statement of Dr. T.S. Palmer, President, Audubon Society, Washington, D.C.).<\/span> He quoted from United States v. Gettysburg Electric Railway Co.<\/em>,57<\/a><\/sup>160 U.S. 668, 681 (1896).<\/span> in which the Supreme Court upheld the federal power of eminent domain:<\/p>\n

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Any act of congress which plainly and directly tends to enhance the respect and love of the citizen for the institutions of his country, and to quicken and strengthen his motives to defend them, and which is germane to, and intimately connected with, and appropriate to, the exercise of some one or all of the powers granted by congress, must be valid.58<\/a><\/sup>1940 Hearing, supra<\/em> note 22, at 80\u201381 (statement of Dr. T.S. Palmer).<\/span><\/p>\n<\/blockquote>\n

In its report, the House Committee on Agriculture recommended passage of the Eagle Act.59<\/a><\/sup>H.R. R\u1d07\u1d18. N\u1d0f. 76-2104, at 1 (1940).<\/span> The report quoted from the same letter from the Secretary of Agriculture that Clason had read at the hearing.60<\/a><\/sup>Id.<\/em> at 1\u20132.<\/span> In the letter, the Secretary expressed his gratification at Congress\u2019s renewed interest in protecting the bald eagle, a species worth protecting for both its aesthetic value and its status as the national symbol.61<\/a><\/sup>Id.<\/em> at 1.<\/span> He said that trophy hunting and egg poaching threatened bald eagle populations and that they would go extinct without further protection.62<\/a><\/sup>Id.<\/em><\/span><\/p>\n

The Senate Committee on Agriculture recommended passage of the companion bill.63<\/a><\/sup>S. R\u1d07\u1d18. N\u1d0f. 76-1589, at 1 (1940).<\/span> The Senate report quoted a similar letter from the Secretary of Agriculture explaining that<\/p>\n

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\u201c[b]ecause of its conspicuousness and relatively large proportions, and doubtless also because of its rarity in certain sections, it is a fact that there are persons in almost every community where an eagle may appear who are eager to shoot it and to boldly advertise their assumed prowess in newspapers and other publications. There are also numerous collectors of birds\u2019 eggs who persistently rob the nests of these eagles.\u201d64<\/a><\/sup>Id.<\/em> at 2.<\/span><\/p>\n<\/blockquote>\n

The bill passed the House on May 20, 1940,65<\/a><\/sup>86 C\u1d0f\u0274\u0262. R\u1d07\u1d04. 6447 (1940).<\/span> just days after Hitler invaded Belgium, France, Luxembourg, and the Netherlands. On the House floor, Congress exempted Alaska from the bill and substituted references to the Department of Agriculture with the Department of the Interior, which had recently taken over wildlife management functions.66<\/a><\/sup>Id.<\/em> The Bureau of Fisheries in the Department of Commerce and the Bureau of Biological Survey in the Department of Agriculture moved to the Department of the Interior effective July 1, 1939, Reorganization Plan No. II, 53 Stat. 1433, \u00a7 3(e)\u2013(f) (1939) (\u201cThe functions of the Secretary of Agriculture relating to the conservation of wild life, game, and migratory birds are hereby transferred to, and shall be exercised by, the Secretary of the Interior.\u201d), and combined to form the Fish and Wildlife Service in 1940, Reorganization Plan No. III, 54 Stat. 1232 \u00a7 3 (1940).<\/span> On May 28, 1940, the Senate substituted the House bill for its identical bill67<\/a><\/sup>86 C\u1d0f\u0274\u0262. R\u1d07\u1d04. 7006 (1940).<\/span> and passed the measure without discussion.68<\/a><\/sup>86 C\u1d0f\u0274\u0262. R\u1d07\u1d04. 7007 (1940).<\/span> President Roosevelt signed the Act for the Protection of the Bald Eagle on June 8, 1940.69<\/a><\/sup>An Act for the Protection of the Bald Eagle, Pub. L. No. 76-567, 54 Stat. 250\u201351 (1940).<\/span><\/p>\n

The preamble to the Act recited that the Continental Congress in 1782 had adopted the bald eagle as the national symbol, \u201cthe bald eagle is no longer a mere bird of biological interest but a symbol of the American ideals of freedom,\u201d and it \u201cis now threatened with extinction.\u201d70<\/a><\/sup>Id.<\/em> at 250.<\/span> The statute made it unlawful to \u201ctake, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle, commonly known as the American eagle, alive or dead, or any part, nest, or egg thereof,\u201d except as permitted by the Secretary of the Interior.71<\/a><\/sup>Id.<\/em> \u00a7\u00a7 1\u20132 (codified at 16 U.S.C. \u00a7\u00a7 668(a), 668a).<\/span> The term \u201ctake\u201d included \u201cpursue, shoot, shoot at, wound, kill, capture, trap, collect, or otherwise willfully molest or disturb,\u201d and the term \u201ctransport\u201d included \u201cship, convey, carry, or transport by any means whatever, and deliver or receive or cause to be delivered or received for such shipment, conveyance, carriage, or transportation.\u201d72<\/a><\/sup>Id.<\/em> \u00a7 4.<\/span> Section 2 of the Act authorized the Secretary of the Interior, if he determined it to be \u201ccompatible with the preservation of the bald eagle as a species,\u201d to \u201cpermit the taking, possession, and transportation of [bald eagles] for the scientific or exhibition purposes of public museums, scientific societies, or zoological parks, or . . . for the protection of wildlife or of agricultural or other interests in any particular locality.\u201d73<\/a><\/sup>Id.<\/em> \u00a7 2.<\/span><\/p>\n

* * *<\/p>\n

In 1940, Congress believed that the Commerce Clause gave it the authority to regulate the taking of a particular species. The Supreme Court endorsed that understanding when it cited the Eagle Act in support of the proposition that \u201c[p]rohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.\u201d74<\/a><\/sup>Gonzales v. Raich, 545 U.S. 1, 26 & n.36 (2005). <\/span>After eighty years, it is time to put Commerce Clause challenges to federal wildlife regulation to rest.<\/p>\n\n\n

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View the PDF Version<\/a><\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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