Cerritos Gun Club v. Hall , 96 F.2d 620 ( 1938 )

STEPHENS, Circuit Judge

(concurring).

I concur in the conclusions reached by both of my associates 'that the judgment of dismissal should be affirmed.

I do not agree with Judge HEALY that the United States District Court was, or is, without jurisdiction to entertain the cause.

I agree with the conclusions reached by Judge DENMAN that the regulation, the subject of complaint, is valid under a valid congressional act. Howeyer, it must be remembered that the validity of the treaty (39 Stat. 1702) and the power of- Congress to pass an act appropriate to the effectuation of the treaty purposes are not in issue. Appellants contend ■ that the treaty, in so far as pertinent here, consists of an agreement regarding the subject of closed seasons for hunting:or taking game birds, and does not contemplate any regulation as to the' means of hunting or taking them. They argue from this premise that both the act of Congress, 16 U.S.C.A.' § 703 et seq., and the regulation of the Secretary of Agriculture as to the means of hunting or taking birds have no authority in law. The. main opinion goes into, the details and I shall not repeat them here.

This conclusion, as it seems to me, results from a too literal interpretation of the treaty itself. The closed seasons are provided as a means toward the protection and preservation of migratory bird species as expressed in the preamble of. the treaty.

Migratory birds of North America— the subject of the treaty- — move in accordance with no man’s will and in accordance with no policy of the state or nations. Their continued propagation depends upon their seasonal flights from Canada into and across the United States, into Mexico, and back again.

Their preservation is of great importance, and, therefore, a legitimate subject of governmental attention^

The settlement of practically every square mile of the states has produced so many hunters that the migratory flocks have met almost unrestrained slaughter upon their 'descent for food, rest, and seasonal stay. Local enforcement of local regulations has proved tragically inadequate.

In these circumstances the governments of the United States and Great Britain have taken jurisdiction of the subject matter through their treaty making powers and, though it is not, generally known, a like convention has been held by the United States and Mexico. ■ The Treaty with. Mexico has not as yet become effective.

The practical aspect of the problem facing the nations’ delegates in convention,, was, of course, a necessity for curtailment of hunting, and they struck directly at this ancient privilege. They prohibited' hunting entirely between the 10th of March and the 1st of September of every year. Then they provided that hunting should, in no case, be permitted for more than three and one-half months of each year, leaving further restrictions or prohibitions of hunting migratory birds to the nations through such regulations as they might decree. That the purposes of the treaty should not be allowed to fail, each nation contracted to pass such measures as would best serve to aid their successful accomplishment. More effective action could not well have been taken by the federal government to take over the whole subject matter under its treaty powers.

Pursuant to the terms of the treaty, Congress passed a comprehensive enabling act to effectuate the purposes of the treaty. This act forbade any unrestrained open season for hunting, but provided for a conditional season — that is, hunting should be permitted only under' certain restrictions, and regulations pertinent to and tending toward the realization of the treaty objectives.

I think the restriction in the form of the regulation, here made the subject of complaint, is pertinent to such objectives. It is not indefinite, discriminatory, nor does, it offend against the United States Constitution as to the delegation of powers.. Therefore it has the dignity of law.

In deciding this-appeal it is wholly unnecessary to consider the commerce clause of the Constitution, art. 1, § 8, cl. 3, and. for that reason I do not concur in Judge DENMAN’S opinion treating of that, subject. I do not intend to intimate, however, that congressional legislation upon such subject, independent of the treaty power,, would be unconstitutional.

The general subject of migratory birds, entices one into a choice chapter of reminiscence. The call of the brant and the-, sand hill crane from the lofty “V” shaped. armadas, the natural navigators of the stratosphere!

“For the people of the village Saw the flock of brant with wonder.”

The sting of the wind-driven rain upon the face of the boy, out with his gun and his dog- — hunting!

The instinct to exercise “dominion over the fowl of the air” sends him on, seemingly never taxing his young endurance as he follows likely creeks for mallards, canvasback, teal, or even, on a luckless day, the lowly spoonbill. Applying his outdoor knowledge and his wits, he approaches behind natural blinds and revels in his dexterity and thrills with his skill as the disturbed birds leave the water.

The trudge homeward with a good bag, his faithful spaniel at his side, his gum boots “asop.” The top of every boot is always below some water line of the day’s tramp. At last, the coal oil lamp’s yellow glow shows the family at the supper table, and now the boy proudly shows his kill, in answer to the animated, “What luck?” “My, you are late, we were getting uneasy.” Of course a share of supper was kept back' and warm in the oven by a thoughtful one. Those were happy days!

Now there are no great flocks in the air, and creeks and the few undrained ponds are given over to gulls and mudhens. The shotgun is oiled and encased. The nations have waited too long.

It is significant that as I end this opinion my eye notes a newspaper dispatch: “George Bird Grinnell, who gained the title of the Father of American Conservation for his work in the cause of saving wild life, died today.”

The decree of dismissal in the United States District Court should be affirmed.