Untitled Texas Attorney General Opinion

The Honorable Clayton T. Garrison Opinion No. H- 150
Executive Director
Texas Parks and Wildlife Department Re: State and federal
John H. Reagan Building authority under the
Austin, Texas 78701 Migratory Bird Treaty
Act, 16 U.S. C. § § 703,
Dear Mr. Garrison: et seq.
You have requested our opinion concerning the jurisdiction of the
Secretary of the Interior and the Texas Parks and Wildlife Department
over migratory birds. Specifically, you ask:
“Does the Secretary of the Interior by virtue
of the Migratory Bird Treaty, the Migratory Bird
Treaty Act, and resulting regulations have authority
to close St. Charles Bay to the hunting, taking, cap-
turing or killing of migratory birds? ”
You indicate that the “opinion is requested in order to ascertain the
jurisdiction of the Department [of Parks and Wildlife] in that portion of St.
Charles Bay which has not been closed by previous action of the Secretary
of the Interior. ”
At our invitation, the Secretary of the Interior has submitted a brief
on this question. By way of factua,l background, he indicates that:
” . . . St. Charles Bay is a finger of the Gulf of Mexico
extending into the midst of the Aransas National Wildlife
Refuge. The refuge is, among other things, the only
wintering area for whooping cranes, which, in addition
to being migratory birds, are listed as a rare and endan-
gered species. These birds move back and forth across
the bay and are threatened with accidental destruction
from hunting as well as being frightened and disturbed
p. 701
The Honorable Clayton T. Garrison, page 2 (H-150)
by the noise and activity normally associated with
hunting. Closing certain areas of the bay was seen
as a necessary measure to protect these birds. ”
The United States has executed conventions with Great Britain
(August 16, 1916), 39 Stat. 1702,and Mexico (February 7, 1936), 50 Stat.
1311, for the protection of migratory birds. Pursuant to those treaties,
the Congress enacted and later reaffirmed the Migratory Bird Treaty
Act, 16 USC $ $703 et seq., which makes it unlawful to pursue, hunt, take,
capture or kill any migratory bird except as permitted by regulations
adopted by the Secretary of the Interior. The Secretary has designated
part of St. Charles Bay as a closed area in which hunting is not permitted.
21 Fed. Reg. 6513 (1956).
It has long been settled that the enactment of the Migratory Bird
Treaty Act was within the power of Congress. Missouri v. Holland, 252
U.S. 416, 40 S. Ct. 382 (1920). Therefore, the Act and the regulations pro-
mulgated under it are superior to any conflicting law of this State. U.S.
Constitution, Article 6, cl. 2. The Secretary of the Interior has broad
discretion under the Act. See Sickman v. U.S., 184 F. 2d 616 (7th Cir. 1950)
cert. denied 341 U.S. 939, 71 S. Ct. 999 (1951); Lansden v. Hart, 180 F. 2d
679 (7th Cir. 1950) cert. denied 340 U.S. 824, 71 S. Ct. 58 (1950).
The Act does permit concurrent regulation by the State so long as the
state laws and regulations are not inconsistent with federal law or provide
additional protection to migratory birds. 16 USC5 708. See Uniform Wildlife
Regulatory Act, Art. 978j-1, V. T. P. C.
Therefore, in answer to your question, it is our opinion that the Secretary
of the Interior may close all or part of St. Charles Bay to hunting. The Texas
Parks and Wildlife Department may regulate areas over which the Secretary
has not asserted jurisdiction and also may regulate areas the Secretary has
closed if its regulations are consistent with the Secretary’s or provide additional
protection to migratory birds.
SUMMARY
The Secretary of the Interior has authority under the
Migratory Bird Treaty Act to prohibit hunting in all or part
p, 702
The Honorable Clayton T. Garrison, page 3 (H-150)
of St. Charles Bay. The Texas Department of Parks
and Wi,ldlife may promulgate and enforce rules and
regulations over portions of the Bay in which the
Secretary has not asserted jursidiction. It may
regulate portions of the Bay covered by the federal
proclamation so long as the state regulations are
consistent with the federal regulations or provide
additional protection to migratory birds.
Very truly yours,
APPRQVED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 703