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CONTROL RESIDENT SPECIES OF WILDLIFE WHICH INHABIT WILDLIFE

REFUGES, UNDER THE ADMIN. OF THE SECRETARY

December 1, 1964

in what manner others may acquire rights in them." Utah Power and Light Company v. United States, supra, at 404.

The authority of the proprietary interest is so substantial that it has been protected by holding enforceable Congressional statutes forbidding acts on lands adjoining Federally owned lands that might endanger the latter. United States v. Alford, 274 U.S. 264, 267 (1927); Camfield v. United States, supra.

The basic constitutional authority appertaining to the proprietary interest in land owned by the United States has sustained the killing of game on Federally owned land by Federal officials while acting within the scope of their authority, although acting in violation of the game laws of the State in which the land was located. Hunt v. United States, 278 U.S. 96 (1928); Chalk v. United States, 114 F. 2d 207 (4th Cir., 1940). See also Arizona v. California, 283 U.S. 423 (1931) and Johnson v. State of Maryland, 254 U.S. 51,56 (1920).

From the foregoing authorities it is apparent that the United States constitutionally empowered as it is, may gain a proprietary interest in land within a State and, in the exercise of this proprietary interest, has constitutional power to enact laws and regulations controlling and protecting that land, including the persons, inanimate articles of value, and resident species of wildlife situated on such land, and that this authority is superior to that of a State.

This broad Federal power to regulate and manage resident species of wildlife on Federally owned land, which is derived from the Federal Constitution and the inherent powers of the Federal Government as a landowner, has been vested in the Secretary of the Interior with respect to those land and water areas which comprise the National Wildlife Refuge System by the regulatory sections of the following legislation.

Section 4 of the Act of September 28, 1962, 76 Stat. 653, 654 (1962); 16 U.S.C. $ 460k-3 (Supp. V, 1959–63).

Section 4 of the Fish and Wildlife Coordination Act, 48 Stat. 401, 402 (1934), as amended, 16 U.S.C. SS 661, 664 (1958).

Section 10 of the Migratory Bird Conservation Act, 45 Stat. 1222, 1224 (1929), as amended, 16 U.S.C. $ 715i (1958).

Section 4 of the Duck Stamp Act, 48 Stat. 451 (1934), as amended, 16 U.S.C. $ 718d (b) (1958).

Furthermore, this authority to regulate and manage resident species of wildlife, which has been delegated to the Secretary by the above legislation, has been supplemented by specific legislation for the ad

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ministration of particular areas. Examples of the regulatory sections of this specific legislation are as follows:

Bear River Migratory Bird Refuge, Section 5 of the Act of April 23, 1928, 45 Stat. 449, 16 U.S.C. $ 690d (1958).

Lea Act Refuges, Section 3 of the Act of May 18, 1948, 62 Stat. 239,16 U.S.C. $ 695b (1958).

National Key Deer Refuge, Section 1 of the Act of August 22, 1957, 71 Stat. 412, 16 U.S.C. $ 696 (1958).

Upper Mississippi River Wildlife and Fish Refuge, Section 3 of the Act of June 7, 1924, 43 Stat. 650, 16 U.S.C. 8 723 (1958).

We interpret the regulatory sections of these statutes as containing sufficient legal authority for the Secretary to make all appropriate rules and regulations which are necessary for the effective administration of these lands within the National Wildlife Refuge System, including the authority to regulate such activities as public use, access, recreation, hunting and fishing, provided the regulations are (1) reasonable and appropriate (i.e., “needful"); (2) not inconsistent with the statutory source of the regulatory authority; and (3) consistent with the purposes for which the area was placed under the administration of the Secretary.

Concerning the restriction that the regulations must not be inconsistent with the statutory source of the regulatory power, it is to be noted that the language contained in the regulatory sections of these statutes (supra) is broad in both scope and intent. An examination of the regulatory sections will show that sweeping, general language was used by Congress to authorize the Secretary to make rules and regulations which are necessary for the effective administration of refuge areas. This statutory source of regulatory authority is, in our opinion, sufficiently broad to permit the Secretary to prohibit all forms of public access, entry, and use of any portion of a refuge area. A fortiori, the statutory source necessarily includes the lesser power to permit the access and use of a refuge for limited purposes and upon such conditions as the Secretary may prescribe.

* * * we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. McCulloch v. Maryland, 4 U.S. (4 Wheat.) 415, 431 (1819).

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CONTROL RESIDENT SPECIES OF WILDLIFE WHICH INHABIT WILDLIFE

REFUGES, UNDER THE ADMIN. OF THE SECRETARY

December 1, 1964

Accordingly, the only meaningful legal issue to be discussed is whether the regulations governing fishing and hunting of resident species of wildlife within a refuge area are reasonable and appropriate, as well as related to the purpose for which the refuge area was acquired or established. Although these issues are primarily questions of fact, a discussion of the principles involved is in order.

Many areas within the National Wildlife Refuge System were acquired primarily for the protection and development of the migratory bird populations; however, some areas, such as the Desert Game Range, were established for the primary purpose of protecting an endangered species. It should also be noted that the Secretary, by law, is required to protect and manage resident species of wildlife which inhabit areas primarily acquired for migratory waterfowl. 48 Stat. 451 (1934), as amended, 16 U.S.C. $ 718d (1958). Regardless of the particular species of wildlife for which the refuge area was primarily acquired, the Secretary must use sound conservation principles which are designed to prevent the overpopulation of wildlife, prevent the destruction of food supplies, and protest the general ecology, in administering all refuge areas.

In addition, the Secretary is now required to manage all areas within the National Wildlife Refuge System in such a manner as to allow various forms of recreational activity, which includes hunting and fishing, that are not inconsistent with the purposes for which the area was established. 76 Stat. 653 (1962), 16 U.S.C. $ 460k-3 (Supp. V, 1959-63). In managing areas within the refuge system, the Secretary must, out of necessity to preserve the area, control hunting and fishing pressures. Any regulation concerning hunting and fishing which has as its focal point sound conservation principles is not only reasonable and proper but is also related to the purpose for which the area was acquired. To argue otherwise is to say that the Secretary is helpless to properly manage Federally owned land and the public use of that land.

Inevitably, out of any discussion concerning the control of resident species of wildlife it is not surprising to have the questions of title to wild animals raised by the States.

With respect to game and wildlife generally, the Supreme Court has said that the power to control lodged in the State is to be exercised as a trust for the benefit of the people and not as a prerogative for the advantage of the Government. Geer v. Connecticut, supra; Foster-Fountain Packing Company v. Haydel, supra; State v. Rodman, 58 Minn. 393 (1894); Magner v. People, 97 Ill. 320 (1881); In Re Eberle, 98 Fed. 295 (1899).

It is the law that he who claims title to game must first reduce it to possession. This proposition is supported by State court decisions too numerous to recite which enunciate that principle. These decisions extend from Pierson v. Post, 3 Caines 175 (New York, 1805), to Koop v. United States, 296 F. 2d 53 (8th Cir., 1961).

The statutes declaring the title to game and fish as being in the State speak only in aid of the State's power of regulations, leaving the landowner's interest what it is. (Italics added.) McKee v. Gratz, 260 U.S. 127, 135 (1922).

It is clear that the "ownership" of wildlife by a State is a trust interest, and not a possessory title. McKee v. Gratz, supra; Missouri v. Holland, 252 U.S. 416 (1920); Sickman et al. v. United States, 184 F. 2d 616 (7th Cir., 1950). Further, the Supreme Court states that as between a State and its inhabitants, the State may regulate the killing and sale of migratory 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.” Missouri v. Holland, supra, at 434. This authority of the State to regulate the killing of wildlife is based upon a trust concept, not upon ownership of or title in the wild animals. Under basic constitutional doctrine the trust or police power (i.e., regulatory jurisdiction) of a State yields to the exercise by the national government of its powers under the property clause of the constitution.

In this memorandum we have attempted to set out the broad authority of the Federal Government, as a landowner, to make needful rules and regulations for the management of its property. We have set forth some of the more pertinent legislation which delegated this broad power to the Secretary of the Interior. It is our conclusion that the Secretary has ample legal authority to make hunting and fishing regulations for particular areas within the National Wildlife Refuge System that prohibit activities authorized and permitted by State law. The regulation of the wildlife populations on Federally owned land is an appropriate and necessary function of the Federal Government when the regulations are designed to protect and conserve the wildlife as well as the land.

EDWARD WEINBERG,

Deputy Solicitor.

December 2, 1964

RAYMOND L. GUNDERSON

A-30134

Decided December 2, 1964 Homesteads (Ordinary): Applications Homesteads (Ordinary): Second

Entry-Alaska: Homesteads The filing of an allowable homestead application in Alaska constitutes an

entry within the meaning of the act of September 5, 1914, so that an individual who has filed an allowable homestead application in Alaska but withdrawn it prior to allowance by the land office has exercised his right of entry under the homestead law and is properly required to make the necessary showing for a second homestead entry under the 1914 act in con

nection with any subsequent homestead application. Homesteads (Ordinary): Applications Homesteads (Ordinary): Second

Entry-Alaska: Homesteads-Administrative Practice An amendment of a departmental regulation to provide expressly for the

first time that the showing required for making a second homestead entry must be made in cases where a homestead application has been filed but withdrawn prior to allowance will not be applied where the first application was filed and withdrawn prior to the effective date of the amendment, particularly where the practice of the land office has been not to require

the showing. Applications and Entries: Priority_Homesteads (Ordinary): Applications The filing of concurrent homestead applications by an individual bars the

allowance of either so long as both applications remain of record and, while the withdrawal of one will permit the allowance of the other, such allowance will be subject to otherwise intervening rights that have been asserted

prior to the withdrawal of the first application. Words and Phrases Entry. An "entry," within the meaning of the act of September 5, 1914,

permitting a second homestead entry where a prior entry has been lost for reasons beyond the control of the entryman, includes the filing of an allowable homestead application in Alaska which is withdrawn by the applicant before it is allowed.

APPEAL FROM THE BUREAU OF LAND MANAGEMENT

Raymond L. Gunderson has appealed to the Secretary of the Interior from a decision dated August 13, 1963, whereby the Division of Appeals, Bureau of Land Management, affirmed a decision of the Anchorage, Alaska, land office rejecting his application for second homestead entry.

On February 21, 1961, Gunderson filed an application for homestead entry, Anchorage 053871, for the S12SW14 sec. 28, T. 5 N., R. 11 W., Seward Mer., Alaska. On April 7, 1961, he filed a relinquishment of all right, title, and interest in and to the land described in

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