BREITENSTEIN, Circuit Judge.
Regulations of the Secretary of the Interior under the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., proscribe the sale of certain birds “whether or not raised in captivity.” Defendant-appellant was charged with, and on a trial to the court found guilty of, the sale of three sparrow hawks, a protected species. The birds were raised in captivity. Defendant was sentenced to concurrent 18 month terms on each of three counts. On this appeal he attacks the validity and applicability of the pertinent statutes and regulations. We affirm.
The facts are not controverted. Sparrow hawks, scientific name falconidae, are migratory nongame birds often used in falconry. They are birds of prey and sometimes referred to as kestrel or raptors. Defendant became interested in raptors at an early age. During 1969 he acquired his first breeding hawks in Wisconsin under a valid state permit. At the time there were no controlling federal regulations. In 1971 he moved to Utah and secured a state propagation and sale permit. In 1972 federal protection of migratory birds was extended to include falconidae. Utah cancelled defendant’s permit. Agents of the Bureau of Fish and Wildlife orally and in writing warned defendant that the sale of sparrow hawks was illegal. He chose to test the statutes and regulations and made three undenied sales of sparrow hawks during the period 1974-1975.
In 1916 the United States and Great Britain entered into a convention “for the protection of migratory birds.” 39 Stat. 1702. The Migratory Bird Treaty Act was passed in 1918 to give effect to the convention. 40 Stat. 755, now codified as 16 U.S.C. § 703 et seq. The constitutionality of the Act was upheld in Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641. Falconidae was not a protected species under the 1916 convention. In 1936 the United States and Mexico entered into a convention for the protection of migratory birds. 50 Stat. 1311. The Act was then amended to extend its provisions to the United States-Mexico convention. 49 Stat. 1555, 1556. By an exchange of notes in 1972, the 1936 convention was amended by adding a list of birds not included in the original convention with Mexico. U.S. Treaties and Other International Agreements, Vol. 23, Part 1, p. 260, TIAS 7302. The list includes falconidae.
The Act authorizes the Secretary of the Interior to adopt regulations to effect the purposes of the conventions. 16 U.S.C. §§ 703 and 704. Over the years many regulations have been proposed, promulgated, modified, and discarded. Before 1961 there was apparently no effort to include captive birds within the definition of migratory birds. In that year notice was given of proposed regulations which, among other things, would change the definition of migratory birds to include birds “whether [494]*494raised in captivity or not.” 26 Fed.Reg. 8207. After comments were received the Secretary deleted the change in definition from the proposal. 26 Fed.Reg. 11246, 11247. In 1966 the Secretary again proposed revisions of the regulations. Included was a proposal to change the definition of migratory birds to cover birds “whether raised in captivity or not.” 31 Fed.Reg. 7700. Comments were received and considered. Section 16.1 of Part 16 was revised to read, 31 Fed.Reg. 11231:
“(a) ‘Migratory birds’ refers to all those species of birds defined as migratory birds under § 10.1 of Part 10 of this subchapter, and includes all birds of the species which, whether raised in captivity or not, cannot be readily and visibly distinguished by general size or coloration from birds of the same species occurring in the wild state.”
The pertinent, presently effective, regulations, 50 C.F.R. § 10.12, define wildlife to include any wild bird “whether or not raised in captivity.” The same section defines “migratory birds” to mean “all birds whether or not raised in captivity, included in the terms and conventions between the United States and any foreign country for the protection of migratory birds and the Migratory Bird Treaty Act * * *.” Section 10.13 lists as a migratory nongame bird “Raptor: Kestrel: American Falco sparverius,” the kind of bird sold by defendant. Specific regulations pertain to permits for the use of falconidae and other birds in falconry, “the sport of taking quarry by means of a trained raptor.” 50 C.F.R. § 21.28. In 1976 the Secretary gave notice of proposed revised regulations pertaining to falconery. 41 Fed.Reg. 2237. The notice includes this statement:
Currently raptor propagation can be authorized under a special use permit issued in accordance with 50 C.F.R. 21.27. However, in the near future new regulations will be proposed to cover captive-reared raptors and the question of the sale of such captive-reared raptors.” Id.
Our attention is called to no new regulations which have been promulgated under the notice. Defendant had no special purpose permit under § 21.27.
Defendant argues that the definition of migratory birds to include those raised in captivity contravenes the intent of Congress expressed in the Act. Section 703, Title 16 U.S.C., provides that unless and except as permitted by regulations, it is unlawful to sell any migratory bird included in the conventions with Great Britain and Mexico. At the time of the offenses charged there was no permission to sell but rather an express prohibition.
Section 704 authorizes the Secretary
“having due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds, to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions to allow * * * sale, purchase, * * * of any such bird * * * and to adopt suitable regulations permitting and governing the same * * *."
Defendant argues that the language pertaining to zones of temperature, breeding habits and lines of migratory flight have significance only to wild migratory birds and, hence, captive birds are excluded. The Act applies to migratory birds, hot wild birds. The reference to wild birds in § 701 is not pertinent. It is concerned with the duties and powers of the Secretary and is not a part of the Act with which we are concerned.
Section 707(c) contains specific provisions relating to hunting. Defendant urges that only wild migratory birds may be hunted and hence the mentioned provisions show an intent that the Act not apply to captive birds. We are not persuaded. The Act must be read as a whole. The specific language of § 707 is consistent with the general language of §§ 703 and 704.
Section 8 of the original Act, 40 Stat. 756, authorized the taking and use of migratory birds for scientific or propagation purposes.
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BREITENSTEIN, Circuit Judge.
Regulations of the Secretary of the Interior under the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., proscribe the sale of certain birds “whether or not raised in captivity.” Defendant-appellant was charged with, and on a trial to the court found guilty of, the sale of three sparrow hawks, a protected species. The birds were raised in captivity. Defendant was sentenced to concurrent 18 month terms on each of three counts. On this appeal he attacks the validity and applicability of the pertinent statutes and regulations. We affirm.
The facts are not controverted. Sparrow hawks, scientific name falconidae, are migratory nongame birds often used in falconry. They are birds of prey and sometimes referred to as kestrel or raptors. Defendant became interested in raptors at an early age. During 1969 he acquired his first breeding hawks in Wisconsin under a valid state permit. At the time there were no controlling federal regulations. In 1971 he moved to Utah and secured a state propagation and sale permit. In 1972 federal protection of migratory birds was extended to include falconidae. Utah cancelled defendant’s permit. Agents of the Bureau of Fish and Wildlife orally and in writing warned defendant that the sale of sparrow hawks was illegal. He chose to test the statutes and regulations and made three undenied sales of sparrow hawks during the period 1974-1975.
In 1916 the United States and Great Britain entered into a convention “for the protection of migratory birds.” 39 Stat. 1702. The Migratory Bird Treaty Act was passed in 1918 to give effect to the convention. 40 Stat. 755, now codified as 16 U.S.C. § 703 et seq. The constitutionality of the Act was upheld in Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641. Falconidae was not a protected species under the 1916 convention. In 1936 the United States and Mexico entered into a convention for the protection of migratory birds. 50 Stat. 1311. The Act was then amended to extend its provisions to the United States-Mexico convention. 49 Stat. 1555, 1556. By an exchange of notes in 1972, the 1936 convention was amended by adding a list of birds not included in the original convention with Mexico. U.S. Treaties and Other International Agreements, Vol. 23, Part 1, p. 260, TIAS 7302. The list includes falconidae.
The Act authorizes the Secretary of the Interior to adopt regulations to effect the purposes of the conventions. 16 U.S.C. §§ 703 and 704. Over the years many regulations have been proposed, promulgated, modified, and discarded. Before 1961 there was apparently no effort to include captive birds within the definition of migratory birds. In that year notice was given of proposed regulations which, among other things, would change the definition of migratory birds to include birds “whether [494]*494raised in captivity or not.” 26 Fed.Reg. 8207. After comments were received the Secretary deleted the change in definition from the proposal. 26 Fed.Reg. 11246, 11247. In 1966 the Secretary again proposed revisions of the regulations. Included was a proposal to change the definition of migratory birds to cover birds “whether raised in captivity or not.” 31 Fed.Reg. 7700. Comments were received and considered. Section 16.1 of Part 16 was revised to read, 31 Fed.Reg. 11231:
“(a) ‘Migratory birds’ refers to all those species of birds defined as migratory birds under § 10.1 of Part 10 of this subchapter, and includes all birds of the species which, whether raised in captivity or not, cannot be readily and visibly distinguished by general size or coloration from birds of the same species occurring in the wild state.”
The pertinent, presently effective, regulations, 50 C.F.R. § 10.12, define wildlife to include any wild bird “whether or not raised in captivity.” The same section defines “migratory birds” to mean “all birds whether or not raised in captivity, included in the terms and conventions between the United States and any foreign country for the protection of migratory birds and the Migratory Bird Treaty Act * * *.” Section 10.13 lists as a migratory nongame bird “Raptor: Kestrel: American Falco sparverius,” the kind of bird sold by defendant. Specific regulations pertain to permits for the use of falconidae and other birds in falconry, “the sport of taking quarry by means of a trained raptor.” 50 C.F.R. § 21.28. In 1976 the Secretary gave notice of proposed revised regulations pertaining to falconery. 41 Fed.Reg. 2237. The notice includes this statement:
Currently raptor propagation can be authorized under a special use permit issued in accordance with 50 C.F.R. 21.27. However, in the near future new regulations will be proposed to cover captive-reared raptors and the question of the sale of such captive-reared raptors.” Id.
Our attention is called to no new regulations which have been promulgated under the notice. Defendant had no special purpose permit under § 21.27.
Defendant argues that the definition of migratory birds to include those raised in captivity contravenes the intent of Congress expressed in the Act. Section 703, Title 16 U.S.C., provides that unless and except as permitted by regulations, it is unlawful to sell any migratory bird included in the conventions with Great Britain and Mexico. At the time of the offenses charged there was no permission to sell but rather an express prohibition.
Section 704 authorizes the Secretary
“having due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds, to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions to allow * * * sale, purchase, * * * of any such bird * * * and to adopt suitable regulations permitting and governing the same * * *."
Defendant argues that the language pertaining to zones of temperature, breeding habits and lines of migratory flight have significance only to wild migratory birds and, hence, captive birds are excluded. The Act applies to migratory birds, hot wild birds. The reference to wild birds in § 701 is not pertinent. It is concerned with the duties and powers of the Secretary and is not a part of the Act with which we are concerned.
Section 707(c) contains specific provisions relating to hunting. Defendant urges that only wild migratory birds may be hunted and hence the mentioned provisions show an intent that the Act not apply to captive birds. We are not persuaded. The Act must be read as a whole. The specific language of § 707 is consistent with the general language of §§ 703 and 704.
Section 8 of the original Act, 40 Stat. 756, authorized the taking and use of migratory birds for scientific or propagation purposes. Defendant argues that the proscription against sale of sparrow hawks [495]*495and captive-raised birds discourages propagation and, hence, thwarts the intent of Congress. We do not agree. The permission granted by § 8 applies until the adoption and approval of regulations pursuant to § 3, which is now 16 U.S.C. § 704. That section authorizes regulations to determine to what extent, if at all, sale may be permitted.
Section 711 is without pertinence. It applies to the breeding and sale of migratory game birds for the purpose of increasing the food supply. Sparrow hawks are migratory nongame birds.
Defendant relies on the legislative history of the Act to support his contention that Congress did not intend that the Act would apply to captive birds. Reference is made to the remarks of various congressmen in the debates on the Act. We find nothing in the legislative history which is helpful. The committee reports did not address the subject of captive nongame birds. See S.Rep. No. 27, 65th Cong. 1st Sess., and H.R. Rep. No. 243, 65th Cong. 2nd Sess. The congressional debates related largely to the constitutionality of the bill. See 56 Cong.Rec. 7360-7381 and 7472-7476. Statements in debate by others than those responsible for the preparation of the bill are entitled to little weight. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 203-204, n. 24, 96 S.Ct. 1375, 47 L.Ed.2d 668.
Legislative history as an aid in determining the intent of Congress is permissible only if the statute is ambiguous. United States v. Public Utilities Commission of California, 345 U.S. 295, 315, 73 S.Ct. 706, 97 L.Ed. 1020. Legislative history may not be used to create an ambiguity. As said in Piper v. Chris Craft Industries, Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124, “[r]eliance on legislative history in divining the intent of Congress is as has often been observed a step to be taken cautiously.” The difficulty is that legislative history often cuts both ways and a researcher can find a bit here and there which supports a desired view.
The purpose of the conventions, and of the Act, is the protection of migratory birds. The statute covers migratory birds and makes no exception of captive migratory birds. The failure to provide the exception does not make the statute ambiguous and justify resort to legislative history. The fact that captive birds do not migrate is immaterial. The question is whether the sparrow hawks which defendant sold belong to a species or group that migrate, not whether the particular birds migrate. United States v. Lumpkin, N.D.Ga., 276 F. 580, 583.
Defendant relies on the fact that from the 1918 passage of the Act until the 1966 revision of the regulations migratory birds were not defined to include all birds of a species “whether raised in captivity or not.” Nonexercise of a granted power does not destroy the grant of that power. See United States v. Morton Salt Company, 338 U.S. 632, 647-648, 70 S.Ct. 357, 94 L.Ed. 401. The validity of regulations promulgated under an authorizing statute will be •sustained so long as they are “reasonably related to the purposes of the enabling legislation.” Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 280 — 281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474; see also Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 36 L.Ed.2d 318. Reasonableness is apparent here because of the difficulty in distinguishing birds raised in captivity from others of the species. In discussing the proposed 1961 revision of the definition to include birds raised in captivity, the Secretary said, 26 Fed.Reg. 11247:
“This definition would make all migratory birds, whether raised in captivity or not, subject to regulations under permit when such birds cannot be readily distinguishable by general coloration from wild birds of the same species.”
From a practical standpoint, the enforcement of the Act would be difficult if the defense was available that a bird involved was raised in captivity. In the exercise of his statutory authority, the Secretary reasonably determined that the problems relat[496]*496ing to captive birds required their inclusion within the definition of migratory birds.
Defendant further contends that the regulatory prohibition of sale was not within the intent of Congress. Section 703 allows sale if permitted by regulation. Section 704 authorizes the Secretary to make regulations governing “to what extent, if at all” a migratory bird may be sold. The language permits regulatory prohibition of sale. The provisions of Section 8 of the original act, 40 Stat. 756, relating to birds held and used for scientific and propagation purposes is inapplicable. The granted permission applied until the adoption and approval of regulations pursuant to § 3, now 16 U.S.C. § 704.
The contention that prohibition of sale thwarts congressional intent because it discourages propagation has no merit. The regulations provide for possession and propagation of migratory birds by public, educational and scientific organizations. See 50 C.F.R. §§ 21.12(b) and 21.27. Falconry permits are also authorized by § 21.28. The Secretary reasonably determined that problems relating to sale outweighed the necessity to permit sales other than those allowed the mentioned organizations. The regulation of sales was within the Secretary’s delegated authority.
Defendant’s pre-protection sparrow hawks were acquired and held under permits from Wisconsin and Utah. His permissive possession of the birds did not carry with it the traditional incidences of property rights. The Fourteenth Amendment’s procedural protection of property safeguards property “already acquired.” Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 33 L.Ed.2d 548. The Wisconsin permit authorizes the collection “for scientific purposes of designated birds for the purpose of “study of their reproductive behavior” and requires that the birds be kept at a designated place. The Utah permit authorizes the sale of “young produced from captive birds” under specified conditions. At the most the states granted a partial property interest which did not encompass all usual property rights. See Got-kin v. Miller, 2 Cir., 514 F.2d 125, 129 n. 6. We reject defendant’s claims of unconstitutional deprivation of property.
Defendant relies on United States v. Marks, S.D.Tex., 4 F.2d 420; In re Informa-tions under Migratory Bird Treaty Act, D.Mont., 281 F. 546, and United States v. Fuld, D.Mont., 262 F. 836. These early cases under the Act were all concerned with the sufficiency of the charges and held that the Act applied prospectively and that the charges were insufficient because they did not allege acquisition after the Act became effective. The validity of these decisions was rejected in United States v. Hamel, 9 Cir., 534 F.2d 1354, 1356. See also United States v. Blanket, W.D.Okl., 391 F.Supp. 15, 19, n. 1.
Allard v. Andrus, decided on June 7,1978, by a three-judge panel in the District of Colorado and not yet published, was concerned with artifacts which existed before the enactment of the federal laws protecting the species of birds whose feathers were used in creating the artifacts. The court said that “Congress chose not to include pre-act birds or products within the proscriptive terms.” We are concerned with live birds, not artifacts. Defendant does not claim that any of the birds sold were possessed by him before the effective date of the protection given to sparrow hawks. The record suggests that the birds sold were offspring of birds acquired at some unstated time.
Defendant says that the misconduct of the trial judge was such that he did not have a fair trial and the effective assistance of counsel. The trial was to the court and the facts relating to the three sales were stipulated. The only issues were the validity and applicability of the statutes and regulations.
We do not approve of the conduct of the trial judge but that disapproval does not require reversal. The actions of which defendant complains were minor incidents which did not effect his substantial rights. See United States v. Cardall, 10 Cir., 550 F.2d 604, 605, cert. denied 434 U.S. 841, 98 S.Ct. 137, 54 L.Ed.2d 105, and United States [497]*497v. Redmond, 10 Cir., 546 F.2d 1386-1391, cert. denied 435 U.S. 995, 98 S.Ct. 1645, 56 L.Ed.2d 83, both cases involving the same trial judge. The occurrences were of little importance in their setting. See Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct. 457, 86 L.Ed. 680.
Defendant, a college professor of good reputation and high community standing, was sentenced to concurrent 18-month terms of imprisonment for a first offense. The severity of the sentence appalls us. The sentence is within statutory limits and was attended by no extraordinary circumstances except its severity. We are without power to modify such a sentence. See Dorszynski v. United States, 418 U.S. 424, 441, 94 S.Ct. 3042, 41 L.Ed.2d 855. The judge who imposed the sentence is now dead. A timely motion for reduction of sentence under Rule 35, F.R.Crim.P., will necessarily be heard and determined by another judge.
Affirmed.