ROBINSON, Senior District Judge.
This is an action by the United States to declare certain North Dakota statutes null and void because they are at odds with the provisions and purposes of federal statutes which protect migratory birds. The United States also seeks a declaration that the Secretary of the Interior can acquire land in
North Dakota for “Waterfowl Production Areas” without obtaining the consent or approval of the Governor. North Dakota filed a counterclaim to enjoin the United States from acquiring land without obtaining additional consent from appropriate state officials.
The District Court
held that, to the extent they conflict with federal law, the challenged North Dakota statutes are invalid and that gubernatorial consent is not a pre-requisite to the acquisition of waterfowl production areas. North Dakota’s counterclaim was dismissed for lack of subject matter jurisdiction. We affirm.
Background
Migratory birds have been protected by treaty and by federal statute for over sixty-years. A brief review of that protection lends perspective to this controversy.
On December 8, 1916, President Wilson proclaimed a treaty with Great Britain (on behalf of Canada) 39 Stat. 1702 for the protection of the “many species of birds [which] in their annual migration traverse certain parts of the United States and ... Canada.”
Id.
Subsequent treaties have been signed with other nations to afford migratory birds similar protection.
In 1918, Congress passed the Migratory Bird Treaty Act (Treaty Act) 16 U.S.C. §§ 703-711 (original version at Ch. 128, §§ 2-3, 40 Stat. 755). The statute’s stated purpose is to implement the treaty between the United States and Great Britain. Generally, it proscribes, subject to regulations issued by the Secretary of Agriculture, the hunting, capture, possession and sale of migratory birds.
Shortly after its enactment, the Treaty Act was challenged on constitutional grounds. In
Missouri v. Holland,
252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920) the state argued that the act interfered with its sovereign ownership of the wild game within its borders - in violation of the Tenth Amendment. The Court upheld both the treaty and the statute. Writing for the majority, Justice Holmes observed:
Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any power to deal with.
252 U.S. at 435, 40 S.Ct. at 384.
See generally Bailey v. Holland,
126 F.2d 317, 319-20 (4th Cir. 1942).
In 1929, the Migratory Bird Conservation Act (Conservation Act) 16 U.S.C. § 715 et seq. was enacted. Complementing the Treaty Act,
it authorizes the Secretary of the Interior to acquire land for inviolate migratory bird sanctuaries but conditions that acquisition on the consent of the state in which the land is located.
45 Stat. 1222, Sec. 5.
See also United States v. Carmack,
329 U.S. 230, 241 n.10, 67 S.Ct. 252, 256-257 n.10, 91 L.Ed. 209 (1946). Together, the
Treaty Act — in regulating hunting and possession — and the Conservation Act — by establishing sanctuaries and preserving natural waterfowl habitat — help implement our national commitment to the protection of migratory birds.
To fund the acquisition of the migratory bird sanctuaries provided for in the Conservation Act, Congress passed the Migratory Bird Hunting and Conservation Stamp Act (Stamp Act) in 1934.
16 U.S.C. § 718 et seq. The Stamp Act provides that anyone hunting migratory birds is required to purchase a hunting stamp. The revenue generated from the sale of these stamps is placed in a special fund known as the Migratory Bird Conservation Fund which in turn is used to acquire refuge areas.
The Stamp Act also authorizes the Secretary of the Interior to acquire the water fowl production areas which are at issue here. Waterfowl production areas are described in the statute as “small wetland and pothole areas.” These areas, like the refuge areas, are financed through the Migratory Bird Conservation Fund. Section 718d(c), however, provides that waterfowl production areas may be acquired without complying with the limitations and requirements of the Conservation Act.
In 1961 Congress passed the Wetlands Loan Act 75 Stat. 813. Codified in sections 715k-3 to k-5 of the Conservation Act, it provides for interest free loans to the migratory bird conservation fund but adds the proviso that no land can be acquired with moneys from the fund unless the acquisition is approved by the governor or by an appropriate state agency.
The statutes highlighted above protect migratory birds, in part, by providing for the acquisition and preservation of their environment. Provision is made to acquire at least two types of habitats, bird sanctuaries and waterfowl production areas, with money from the Migratory Bird Conservation Fund. The Conservation Act provides that sanctuaries may be acquired only with state consent.
See United States v. 1,216.83 Acres of Land,
573 F.2d 1054, 1055 (9th Cir. 1978);
Swan Lake Hunting Club v. United States,
381 F.2d 238, 242-43 (5th Cir. 1967). A dispute about whether state consent is also required for the acquisition of waterfowl production areas precipitated this controversy.
Facts
The Fish and Wildlife Service of the Department of the Interior has acquired over
750,000 acres of permanent easements as waterfowl production areas in North Dakota. All of the acreage has been acquired with the consent of the Governor or an appropriate state official.
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ROBINSON, Senior District Judge.
This is an action by the United States to declare certain North Dakota statutes null and void because they are at odds with the provisions and purposes of federal statutes which protect migratory birds. The United States also seeks a declaration that the Secretary of the Interior can acquire land in
North Dakota for “Waterfowl Production Areas” without obtaining the consent or approval of the Governor. North Dakota filed a counterclaim to enjoin the United States from acquiring land without obtaining additional consent from appropriate state officials.
The District Court
held that, to the extent they conflict with federal law, the challenged North Dakota statutes are invalid and that gubernatorial consent is not a pre-requisite to the acquisition of waterfowl production areas. North Dakota’s counterclaim was dismissed for lack of subject matter jurisdiction. We affirm.
Background
Migratory birds have been protected by treaty and by federal statute for over sixty-years. A brief review of that protection lends perspective to this controversy.
On December 8, 1916, President Wilson proclaimed a treaty with Great Britain (on behalf of Canada) 39 Stat. 1702 for the protection of the “many species of birds [which] in their annual migration traverse certain parts of the United States and ... Canada.”
Id.
Subsequent treaties have been signed with other nations to afford migratory birds similar protection.
In 1918, Congress passed the Migratory Bird Treaty Act (Treaty Act) 16 U.S.C. §§ 703-711 (original version at Ch. 128, §§ 2-3, 40 Stat. 755). The statute’s stated purpose is to implement the treaty between the United States and Great Britain. Generally, it proscribes, subject to regulations issued by the Secretary of Agriculture, the hunting, capture, possession and sale of migratory birds.
Shortly after its enactment, the Treaty Act was challenged on constitutional grounds. In
Missouri v. Holland,
252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920) the state argued that the act interfered with its sovereign ownership of the wild game within its borders - in violation of the Tenth Amendment. The Court upheld both the treaty and the statute. Writing for the majority, Justice Holmes observed:
Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any power to deal with.
252 U.S. at 435, 40 S.Ct. at 384.
See generally Bailey v. Holland,
126 F.2d 317, 319-20 (4th Cir. 1942).
In 1929, the Migratory Bird Conservation Act (Conservation Act) 16 U.S.C. § 715 et seq. was enacted. Complementing the Treaty Act,
it authorizes the Secretary of the Interior to acquire land for inviolate migratory bird sanctuaries but conditions that acquisition on the consent of the state in which the land is located.
45 Stat. 1222, Sec. 5.
See also United States v. Carmack,
329 U.S. 230, 241 n.10, 67 S.Ct. 252, 256-257 n.10, 91 L.Ed. 209 (1946). Together, the
Treaty Act — in regulating hunting and possession — and the Conservation Act — by establishing sanctuaries and preserving natural waterfowl habitat — help implement our national commitment to the protection of migratory birds.
To fund the acquisition of the migratory bird sanctuaries provided for in the Conservation Act, Congress passed the Migratory Bird Hunting and Conservation Stamp Act (Stamp Act) in 1934.
16 U.S.C. § 718 et seq. The Stamp Act provides that anyone hunting migratory birds is required to purchase a hunting stamp. The revenue generated from the sale of these stamps is placed in a special fund known as the Migratory Bird Conservation Fund which in turn is used to acquire refuge areas.
The Stamp Act also authorizes the Secretary of the Interior to acquire the water fowl production areas which are at issue here. Waterfowl production areas are described in the statute as “small wetland and pothole areas.” These areas, like the refuge areas, are financed through the Migratory Bird Conservation Fund. Section 718d(c), however, provides that waterfowl production areas may be acquired without complying with the limitations and requirements of the Conservation Act.
In 1961 Congress passed the Wetlands Loan Act 75 Stat. 813. Codified in sections 715k-3 to k-5 of the Conservation Act, it provides for interest free loans to the migratory bird conservation fund but adds the proviso that no land can be acquired with moneys from the fund unless the acquisition is approved by the governor or by an appropriate state agency.
The statutes highlighted above protect migratory birds, in part, by providing for the acquisition and preservation of their environment. Provision is made to acquire at least two types of habitats, bird sanctuaries and waterfowl production areas, with money from the Migratory Bird Conservation Fund. The Conservation Act provides that sanctuaries may be acquired only with state consent.
See United States v. 1,216.83 Acres of Land,
573 F.2d 1054, 1055 (9th Cir. 1978);
Swan Lake Hunting Club v. United States,
381 F.2d 238, 242-43 (5th Cir. 1967). A dispute about whether state consent is also required for the acquisition of waterfowl production areas precipitated this controversy.
Facts
The Fish and Wildlife Service of the Department of the Interior has acquired over
750,000 acres of permanent easements as waterfowl production areas in North Dakota. All of the acreage has been acquired with the consent of the Governor or an appropriate state official. Approval was obtained from Governor Guy between 1961 and 1964 for the acquisition of acreage in forty-one North Dakota counties and the current Governor, Arthur Link, approved various acreage adjustments between 1973 and 1977. This consent is sufficient to enable the Fish and Wildlife Service to meet its acquisition objectives for waterfowl production areas in North Dakota.
In 1977 North Dakota passed legislation limiting and placing conditions on any further acquisitions by the federal government. Additional acquisitions are now subject to the approval of the board of county commissioners in the county where the land is located. The county agent in the affected county is required to prepare an impact analysis for the county board and the Department of the Interior must reimburse the county for the cost of the analysis. In addition, the affected land owner is permitted to negotiate the terms and duration of the lease or easement.
North Dakota has also restricted the duration of any lease, easement or servitude to 99 years.
The United States seeks a judgment declaring that, to the extent they conflict with the federal policy of protecting migratory birds, these statutes are null and void. A judgment is also sought declaring that waterfowl production areas can be acquired without the consent of North Dakota’s Governor.
Gubernatorial Consent and Waterfowl Production Areas
North Dakota contends that gubernatorial consent is required for the acquisition of waterfowl production areas and that any previous consent has been revoked by Governor Link. The state also points out that it has shifted its policy of giving unconditional approval to federal acquisitions by passing the 1977 amendments to section 20.1-02-18 of the North Dakota Century Code. The linchpin of the state’s argument is that gubernatorial consent is in fact required. For this proposition North Dakota relies on section 715k-5 of the Conservation Act which requires state approval for all land acquired with moneys from the migratory bird conservation fund. Since waterfowl production areas are so acquired, North Dakota argues that they are subject to the approval of the Governor.
We disagree. The section of the Stamp Act which authorizes the Secretary of the Interior to acquire waterfowl production areas also provides that they “may be acquired without regard to the limitations and requirements of the Migratory Bird Conservation Act.” 16 U.S.C. § 718d(c). The paramount requirements of that Act are those which condition land acquisitions on state and gubernatorial consent. 16 U.S.C. §§ 715f and 715k-5. If the language in the Stamp Act exempting waterfowl production areas from the limitations and requirements of the Conservation Act is to have any meaning, it must be read as permitting the acquisition of those areas without the consent requirements. To find otherwise is simply to ignore the unambiguous language of the Stamp Act.
In this case approval has already been given for the acquisition of enough waterfowl easements to enable the Fish and Wildlife Service to meet its goals for waterfowl production areas in North Dakota. The state claims that this consent has been withdrawn. It argues that by approving acquisitions a Governor does not bind succeeding administrations and as a result the consent of one Governor may be revoked by another. Here it is contended that the county by county approvals given by Governor Guy between 1961 and 1964 did not extend beyond his term of office and that the acreage adjustments approved by Governor Link have been revoked.
While we hold that gubernatorial consent is not required for the acquisition of waterfowl production areas, it is clearly present here and cannot be revoked. To permit revocation would inject intolerable uncertainty into conservation planning and policy. It would subject every acquisition to the whim of changing state governments.
The Fifth Circuit Court of Appeals reached the same conclusion in
Swan Lake supra.
In that case the Governor of Mississippi unconditionally consented to the acquisition of lands to be added to the Yazoo National Wildlife Refuge. When the United States condemned land adjoining the refuge which belonged to the Swan Lake
Hunting Club, the Club produced a disclaimer from the Governor to the effect that he had not consented to the acquisition of the land by condemnation or to the acquisition of the hunting rights. Finding that condemnation was permissible under the Conservation Act,
the Court rejected the Governor’s disclaimer: “In his letter of September 18 Governor Barnett consented ... to the ‘purchase’ of the ‘lands’ in question; no limitation was placed on this broad language.... His disclaimer made nearly three years later cannot alter the legal effect of words uttered in 1960.” 381 F.2d at 244-45.
In this case there has been no showing that any of the gubernatorial authorizations which have allegedly been withdrawn contained any contemporaneous reservations or limitations.
Accordingly, North Dakota cannot now complain that its prior approvals have been revoked or altered by the sub rosa intentions of the consenting officials.
In short, the Stamp Act explicitly provides that waterfowl production areas may be acquired without state or gubernatorial consent. Whether required or not, consent is present here. A coherent waterfowl protection program is possible only when that consent is not subject to the belated conditions and revocations urged by the state.
The Challenged North Dakota Statutes.
The United States, through its treaty obligations with other nations, is committed to a policy of protecting migratory birds. That policy is implemented in part by federal statutes which preserve natural waterfowl habitat. State legislation which hinders or frustrates those statutes violates the Supremacy Clause Art. VI cl. 2 and cannot stand.
Nash v. Florida Industrial Comm'n.,
389 U.S. 235, 240, 88 S.Ct. 362, 366, 19 L.Ed.2d 438 (1967).
See Little Lake Misere Land Co. v. United States,
412 U.S. 580, 596-97, 93 S.Ct. 2389, 2398-2399, 37 L.Ed.2d 187 (1973).
In
United States v. Albrecht,
496 F.2d 906 (8th Cir. 1974) the government sued to enforce a provision in a waterfowl production easement which prohibited draining or ditching on the land in question. The defendants argued that North Dakota law did not allow the specific type of easement conveyed to the United States. In requiring the Albrechts to comply with the terms of the easement, this Court observed that:
The specific federal governmental interest in acquiring rights to property for waterfowl production areas is stronger than any possible “aberrant” or “hostile” North Dakota law that would preclude the conveyance granted in this case. We fully recognize that laws of real property
are usually governed by the particular states; yet the reasonable property right conveyed to the United States in this case effectuates an important national concern, the acquisition of necessary land for waterfowl production areas, and should not be defeated by any possible North Dakota law barring the conveyance of this property right.
496 F.2d at 911.
The North Dakota statutes challenged here are clearly hostile to the acquisition of waterfowl production areas by the United States. They place several conditions on the initial acquisition of waterfowl leases and easements and then set a limit on their duration. Among other things, the statutes require the Department of the Interior to reimburse the county for the cost of its impact analysis; permit landowners to negotiate the time period of leases and easements; and restrict all leases and easements to 99 years.
To the extent they encumber the federal statutes which provide for the acquisition of waterfowl habitat, the challenged North Dakota statutes are impermissible and must yield to the overriding national interest in protecting migratory birds.
North Dakota’s Counterclaim.
The district court dismissed North Dakota’s counterclaim for lack of subject matter jurisdiction. The counterclaim seeks to enjoin further land acquisitions both under the Conservation Act and with moneys from the migratory bird conservation fund without additional state consent. The only factual allegation is that the Fish and Wildlife Service intends to condemn additional land for the Lake Alice National Wildlife Refuge. This allegation is based on a letter to Governor Link from the area wildlife manager which discloses the planned condemnation.
Jurisdiction for the counterclaim is based on federal question 28 U.S.C. § 1331, the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 and the Administrative Procedure Act, 5 U.S.C. §§ 701-706. On appeal North Dakota concedes that standing alone section 1331 does not confer jurisdiction.
Appellants’ Brief at 42. It argues, however, that when 1331 is considered along with section 702 of the APA there is a jurisdictional basis for its suit against the United States.
Section 702 provides in part:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensible party.
Assuming arguendo that North Dakota is correct,
the counterclaim was still properly dismissed in light of the relief granted the United States in its case in chief.
In addition, it would seem that under this record North Dakota’s request for injunctive relief is premature. There is no allegation that the United States has commenced condemnation proceedings with respect to the Lake Alice area. In fact the letter indicating that suit would be filed also said that “(a)ny counteroffers received ... will be carefully considered and every effort will be made to reach mutually acceptable agreements if at all possible.” Designated Record at 56. We conclude that North Dakota’s counterclaim was properly dismissed.
The judgment of the district court is affirmed.