The Wildlife and Marine Resources Section (WMRS) has a small number of cases under other fish and wildlife conservation statutes. Those are usually presented under the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, or the Wild Free-Roaming Horses and Burros Act.
The Migratory Bird Treaty Act.
The Migratory Bird Treaty Act (MBTA), enacted in 1918, is one of the earliest wildlife protection statutes. The MBTA’s provisions are based on the treaty power of the United States and implements four bilateral treaties with Canada, Mexico, Japan and Russia. The MBTA was originally enacted in response to public outcry over the slaughter of millions of birds for use in the millinery industry; feathers were in great demand for use in ladies hats and this fashion was having a detrimental impact on bird species’ populations.
The MBTA contains a very broad prohibited acts provision – it prohibits:
“by any means or in any manner” the pursuit, capture, killing, hunting or possession of a migratory bird or bird part, nest or egg unless permitted by the Fish and Wildlife Service (FWS) of the U.S. Department of the Interior.
However, the statute also provides the Secretary of the Interior broad regulatory authority to permit takes, as the Secretary does when he sets annual game bird hunting seasons in the various United States migratory bird flyways.
The MBTA itself only authorizes criminal enforcement, and the criminal prosecutors of the Division’s Environmental Crimes Section often handle such matters. However, WMRS handles any case brought against the Secretary when he implements the act, such as setting game seasons, or other take authorizations. In addition, in recent years, environmental organizations have sought to compel other federal agencies to comply with the MBTA through challenges under the Administrative Procedure Act. In this context, the Section has defended:
- the Forest Service on claims that timber harvesting caused “takes” of migratory birds in violation of the MBTA; and
- the Department of the Navy, on claims that military training activities involving aerial bombing training killed migratory birds.
The Bald and Golden Eagle Protection Act.
Similar to the MBTA, the Bald and Golden Eagle Protection Act (BGEPA) broadly prohibits any “take” of bald or golden eagles, and provides only for criminal enforcement.
A major issue handled by the Wildlife Section in the early years of BGEPA enforcement was the applicability of the Act to Native Americans’ free exercise of religion. Many Native American tribes utilized eagle feathers in religious practices, and tribes contended that the BGEPA did not apply to them.
In 1986, in United States v Dion, the Supreme Court held that the BGEPA abrogated Indian treaty rights to take eagles, finding that the BGEPA “reflected an unmistakable and explicit legislative policy choice that Indian hunting of the bald or golden eagle, except pursuant to permit, is inconsistent with the need to preserve those species.”
The Secretary of the Interior manages an eagle permit program, to which Native Americans can apply to obtain permitted eagle feathers for religious use. With the passage of the Religious Freedom Restoration Act of 1993, there has been renewed litigation over whether this eagle permit program furthers the compelling government interest under the BGEPA and MBTA in conserving eagles, using the least restrictive means.
The Wild Free-Roaming Horses and Burros Act.
The Bureau of Land Management (BLM) manages the public lands under principles of multiple use and sustained yield. Since 1971, this responsibility has included oversight and management of wild horses and burros on public lands pursuant to the Wild Free-Roaming Horses and Burros Act.
When it enacted the Wild Horses and Burros Act, Congress was concerned that wild horses were vanishing from the West. Congress wished to preserve the horses as “living symbols of the historic and pioneer spirit of the West,” and directed the Secretary to provide for their protection and management.
The Wild Horses and Burros Act grants the Secretary of the Interior jurisdiction over all wild free-roaming horses and burros on federal lands and directs the Secretary to “manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands.” BLM, the Secretary’s delegate, carries out this function in localized herd management areas, established in accordance with broader land use plans.
In each herd management area, BLM officials at the field and state office levels are afforded significant discretion to determine their own methods for computing appropriate management levels for the wild horse and burro populations they manage. When wild horse populations exceed the carrying capacity of the range, or when they stray outside of a designated herd area, BLM is obliged under the Wild Horses and Burros Act to remove them.
The Wildlife Section handles litigation concerning these obligations to both conserve and manage wild horses. Animal protection advocates may sue to enjoin BLM from gathering horses; conversely, when BLM does not remove horses from an overcrowded range, landowners or states may sue to compel a gather.