444 U.S. 51
Argued Oct. 1, 1979.
Decided Nov. 27, 1979.
51 Syllabus [FN*]
FN* The syllabus
constitutes no part of the opinion of the Court but has been prepared by
the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct.
282, 287, 50 L.Ed. 499.
Eagle Protection Act makes it unlawful to "take, possess, sell,
purchase, barter, offer to sell, purchase or barter, transport, export or
import" bald or golden eagles or any part thereof, with the proviso
that the prohibition does not apply to "possession or
transportation" of such eagles or parts thereof taken prior to the
effective date of the Act. Similarly,
the Migratory Bird Treaty Act makes it unlawful to engage in such
activities with respect to migratory birds and their parts, unless they
are permitted by regulations promulgated under the Act.
Appellant Secretary of the Interior promulgated regulations
prohibiting commercial transactions in parts of birds legally killed
before they came under the protection of these Acts.
After two of the appellees who had sold "pre-existing"
Indian artifacts partly composed of feathers of currently protected birds
were prosecuted for violations of both Acts, appellees, who are engaged in
the trade of such artifacts, brought suit in District Court for
declaratory and injunctive relief, alleging that the Acts do not forbid
the sale of appellees' artifacts insofar as the constituent bird parts
were obtained prior to the effective dates of the Acts, and that if the
Acts and regulations do apply to such property, they violate the Fifth
Amendment. The District
Court granted the relief sought, holding that the Acts were to be
interpreted as not applicable to pre-existing, legally obtained bird
parts, and that therefore the regulations were void as unauthorized
extensions of the Acts and were violative of appellees' Fifth Amendment
Both Acts contemplate regulatory prohibition of commerce in the parts of
protected birds, without regard to when those birds were originally taken.
In view of the exhaustive and careful enumeration of forbidden acts in the
Eagle Protection Act, the narrow limitation of the proviso to
"possession or transportation" compels the conclusion that, with
respect to pre-existing artifacts, Congress specifically, declined to
except any activities other than possession and transportation from the
general ban. The
legislative history shows that this precise use of terminology
52 was intentional. Moreover, the prohibition against the sale of bird
parts lawfully taken before the effective date of federal protection is
fully consonant with the Act's purpose of preventing evasion of the
statutory prohibitions for commercial gain.
While the Migratory Bird Treaty Act contains no explicit exception for the
possession or transportation of bird parts obtained before the federal
protection became effective, nevertheless the text, context, and purpose
of that Act support the Secretary's interpretative regulations.
There is nothing in the Act that requires an exception for the sale
of pre-existing artifacts, and no such statutory exception can be implied.
The Act's structure and context also suggest congressional
understanding that regulatory authorities could ban the sale of lawfully
taken birds, except where otherwise expressly instructed by the Act.
The simple prohibition of the sale of lawfully acquired property does not
effect a taking in violation of the Fifth Amendment.
The challenged regulations do not compel the surrender of the
artifacts in question, and there is no physical invasion or restraint upon
them. The denial of one
traditional property right does not always amount to a taking.
Nor is the fact that the regulations prevent the most profitable
use of appellees' property dispositive, since a reduction in the value of
property is not necessarily equated with a taking.
S. Shapiro, Washington, D. C., for appellants.
P. Akolt, III, Denver, Colo., for appellees.
Justice BRENNAN delivered the opinion of the Court.
Eagle Protection Act and the Migratory Bird Treaty Act are conservation
statutes designed to prevent the destruction 53 of certain species of birds. [FN1] Challenged in this case
is the validity of regulations promulgated by appellant Secretary of the
Interior that prohibit commercial transactions in parts of birds legally
killed before the birds came under the
54 protection of the statutes.
The regulations provide in pertinent part:
FN1. The Eagle
Protection Act, § 1, 54 Stat. 250, as amended, as set forth in 16 U.S.C.
§ 668(a), provides in pertinent part:
within the United States or any place subject to the jurisdiction thereof,
without being permitted to do so as provided in this subchapter, shall
knowingly, or with wanton disregard for the consequences of his act take,
possess, sell, purchase, barter, offer to sell, purchase or barter,
transport, export or import, at any time or in any manner any bald eagle
commonly known as the American eagle or any golden eagle, alive or dead,
or any part, nest, or egg thereof of the foregoing eagles, or whoever
violates any permit or regulation issued pursuant to this subchapter,
shall be fined not more than $5,000 or imprisoned not more than one year
or both: . . . Provided further, That nothing herein shall be
construed to prohibit possession or transportation of any bald eagle,
alive or dead, or any part, nest, or egg thereof, lawfully taken prior to
June 8, 1940, and that nothing herein shall be construed to prohibit
possession or transportation of any golden eagle, alive or dead, or any
part, nest, or egg thereof, lawfully taken prior to the addition to this
subchapter of the provisions relating to preservation of the golden
eagle." The Migratory Bird Treaty Act, § 2, 40 Stat. 755, as
amended, as set forth in 16 U.S.C. § 703, similarly provides:
"Unless and except as permitted by regulations made as hereinafter
provided in this subchapter, it shall be unlawful at any time, by any
means or in any manner, to pursue, hunt, take, capture, kill, attempt to
take, capture, or kill, possess, offer for sale, sell, offer to barter,
barter, offer to purchase, purchase, deliver for shipment, ship, export,
import, cause to be shipped, exported, or imported, deliver for
transportation, transport or cause to be transported, carry or cause to be
carried, or receive for shipment, transportation, carriage, or export, any
migratory bird, any part, nest, or eggs of any such bird, or any product,
whether or not manufactured, which consists, or is composed in whole or
part, of any such bird or any part, nest, or egg thereof, included in the
terms of the conventions between the United States and Great Britain for
the protection of migratory birds concluded August 16, 1916 (39 Stat.
1702), the United States and the United Mexican States for the protection
of migratory birds and game mammals concluded February 7, 1936, and the
United States and the Government of Japan for the protection of migratory
birds and birds in danger of extinction, and their environment concluded
March 4, 1972."
50 CFR § 21.2(a)
birds, their parts, nests, or eggs, lawfully acquired prior to the
effective date of Federal protection under the Migratory Bird Treaty Act
. . . may be possessed
or transported without a Federal permit, but may not be imported,
exported, purchased, sold, bartered, or offered for purchase, sale, trade,
or barter. . . ."
50 CFR § 22.2(a) (1978):
eagles, alive or dead, or their parts, nests, or eggs lawfully acquired
prior to June 8, 1940, and golden eagles, alive or dead, or their parts,
nests, or eggs lawfully acquired prior to October 24, 1962, may be
possessed, or transported without a Federal permit, but may not be
imported, exported, purchased, sold, traded, bartered, or offered for
purchase, sale, trade or barter. .
are engaged in the trade of Indian artifacts:
several own commercial enterprises, one is employed by such an
enterprise, and one is a professional appraiser.
A number of the artifacts are partly composed of the feathers of
currently protected birds, but these artifacts existed before the
statutory protections came into force.
After two of the appellees who had sold "pre-existing"
artifacts were prosecuted for violations of the Eagle Protection Act and
the Migratory Bird Treaty Act, [FN2] appellees brought this suit for
declaratory and injunctive relief in the District Court for the District
of Colorado. The
complaint alleged that the statutes do not
*55 forbid the sale of appellees' artifacts insofar as the constituent
birds' parts were obtained prior to the effective dates of the statutes.
It further alleged that if the statutes and regulations do apply to
such property, they violate the Fifth Amendment. [FN3]
FN2. Appellee L. Douglas
Allard was convicted and fined for violating the Eagle Protection Act, 16
U.S.C. § 668(a), which establishes criminal penalties for unpermitted
eagle sales. United States v.
Allard, 397 F.Supp. 429 (D.C.Mont.1975).
Appellee Pierre Bovis was prosecuted under the Eagle Protection Act
and under the Migratory Bird Treaty Act, 16 U.S.C. § 707, which provides
criminal penalties for the unlawful sale of migratory birds.
United States v. Bovis, Nos. 75-CR-63 and 75-CR-66 (Colo.1975).
FN3. Appellees also
alleged that the Migratory Bird Treaty Act and regulations thereunder were
unconstitutionally vague and involved an improper delegation of
legislative power to the Executive Branch.
These allegations were not passed on by the District Court and are
not pressed here. We
therefore do not address them.
A three-judge court, convened pursuant to 28 U.S.C. § 2282
(1970 ed.), [FN4] held that because of "grave doubts whether these
two acts would be constitutional if they were construed to apply to pre-act
bird products," the Acts were to be interpreted as "not
applicable to preexisting, legally-obtained bird parts or products
therefrom. . . ." App. to Juris. Statement 13a-14a. Accordingly, the court
ruled that "the interpretive regulations, 50 C.F.R. §§ 21.2(a) and
22.2(a) [are] void as unauthorized extensions of the Migratory Bird Treaty
Act and the Eagle Protection Act and [are] violative of the [appellees']
Fifth Amendment property rights."
Id., at 14a. Judgment
was entered declaring "the subject regulations to be invalid and
unenforceable as against the [appellees'] property rights in feathers and
artifacts owned before the effective date of the subject statute,"
and enjoining appellants "from any interference with the exercise of
such rights, including the rights of sale, barter or exchange."
Id., at 16a-17a. We noted probable jurisdiction.
440 U.S. 905, 99 S.Ct. 1210, 59 L.Ed.2d 452 (1979).
The Secretary contends that appellees' constitutional claims are
insubstantial and did not justify convention of a three-judge court. We disagree.
See Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36
(1973); Hagans v. Lavine, 415
U.S. 528, 536‑538, 94 S.Ct. 1372, 1378-1380, 39 L.Ed.2d 577 (1974).
Appellant Secretary of the Interior contends that both
the Eagle Protection and Migratory Bird Treaty Acts contemplate 56 regulatory prohibition of commerce in the parts of protected
birds, without regard to when those birds were originally taken.
Appellees respond that such a prohibition serves no purpose,
arguing that statutory protection of wildlife is not furthered by am
embargo upon traffic in avian artifacts that existed before the statutory
safeguards came into effect.
Our point of departure in statutory analysis is the language
of the enactment. See
Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361,
2366, 60 L.Ed.2d 980 (1979). "Though
we may not end with the words in construing a disputed statute, one
certainly begins there." F.
Frankfurter, Some Reflections on the Reading of Statutes 16 (1947).
The terms of the Eagle Protection Act plainly must be read as
appellant Secretary argues. The
sweepingly framed prohibition in § 668(a) makes it unlawful to
"take, possess, sell, purchase, barter, offer to sell, purchase or
barter, transport, export or import" protected birds.
Congress expressly dealt with the problem of pre-existing bird
products by qualifying that general prohibition with the proviso that
"nothing herein shall be construed to prohibit possession or
transportation " of bald or golden eagle parts taken prior to the
effective date of coverage under the Act.
In view of the exhaustive and careful enumeration of forbidden
acts in § 668(a), the narrow limitation of the proviso to
"possession or transportation" compels the conclusion that, with
respect to pre-existing artifacts, Congress specifically declined to
except any activities other than possession and transportation from the
general statutory ban. To
read a further exemption for pre-existing artifacts into the Eagle
Protection Act, "we would be forced to ignore the ordinary meaning of
plain language." TVA v.
Hill, 437 U.S. 153, 173, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117 (1978).
Nor can there be any question of oversight or drafting error.
Throughout the statute the distinct concepts of 57 possession, transportation, taking, and sale or purchase are
treated with precision. The
broad proscriptive provisions of the Eagle Protection Act were
consistently framed to encompass a full catalog of prohibited acts, always
including sale or purchase. See
§§ 668(a), 668(b), 668b(b). In
contrast, the exemptions created were specifically limited to possession
or transportation, § 668(a), [FN5] taking, § 668a, [FN6] or taking,
possession, or transportation, ibid. [FN7]
FN5. Exemption for pre-existing artifacts.
FN6. Exemption for takings necessary to protect wildlife,
livestock, or agriculture from predation.
FN7. Exemption for scientific, zoological, or religious needs and,
in certain circumstances, for falconry.
That this precise use
of terminology was intentional is clear from the legislative history.
An explanatory letter from the Department of Agriculture that was
adopted in the Senate Report on the bill defines the reach of the Eagle
Protection Act to make it unlawful to
sell, purchase, transport, or otherwise deal with the bald eagle
. . . with the proviso
to the effect that it will not apply to the possession or transportation
of any such eagle . . .
taken prior to the effective date of the bill."
S.Rep. No. 1589, 76th Cong., 3d Sess., 1 (1940).
Further when Congress amended the Eagle Protection Act in 1962 to
cover golden eagles, it once again excepted only possession and
transportation of pre-existing artifacts from the general ban.
76 Stat. 1246. And it is particularly relevant that Congress has twice reviewed and
amended the statute without rejecting the Department's view that it is
authorized to bar the sale of pre-existing artifacts. [FN8]
Cf. NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, 94 S.Ct. 1757,
1762, 40 L.Ed.2d 134 (1974).
FN8. In 1962, Congress
extended the Eagle Protection Act to cover golden, as well as bald,
eagles, 76 Stat. 1246, and in 1972 penalties under the statute were
reinforced, 86 Stat. 1064. On
each occasion -- especially the latter -- the purposes and scheme of the
bill were considered. S.Rep. No. 1986, 87th Cong., 2d Sess. (1962);
H.R.Rep. No. 1450, 87th Cong., 2d Sess. (1962);
S.Rep. No. 92-1159 (1972), U.S.Code Cong. & Admin.News, p.
4285; H.R.Rep. No. 92-817
preventing the sale of pre-existing artifacts had been in force for some
time preceding these amendments, see 50 CFR § 6.1 (Cum.Supp.1944);
50 CFR §§ 11.1 and 11.8(b) (1964);
50 CFR § 22.2 (1978), although the wording of the 1960 regulation
may suggest otherwise, 50 CFR §§ 11.1 and 11.6(b) (1961).
The prohibition against the sale of bird parts lawfully taken
before the effective date of federal protection is fully consonant
with the purposes of the Eagle Protection Act.
It was reasonable for Congress to conclude that the
possibility of commercial gain presents a special threat to
the preservation of the eagles because that prospect creates
a powerful incentive both to evade statutory prohibitions
against taking birds and to take a large volume of birds.
The legislative draftsmen might well view evasion as
a serious danger because there is no sure means by which to
determine the age of bird feathers;
feathers recently taken can easily be passed off as
having been obtained long ago.[FN9]
FN9. See Affidavit
of Dr. Alan H. Brush, App. 44-46.
Appellees argue that even if the age of feathers cannot be
ascertained, it is still possible to date the Indian artifacts of which
the feathers are a constituent.
Thus, they contend that the goal of preventing evasion of the
statute could have been achieved by means less onerous than a general
sales ban: for example, by
requiring documentation and appraisal of feathered artifacts.
The short answer is that this legislation is not limited to the
sale of feathers as part of artifacts;
it broadly addresses sale or purchase of feathers and other bird
parts in any shape or form. The
prohibitions of the statute were devised to resist any evasion, whether in
the sale of feathers as part of datable artifacts or in the sale of
separate undatable bird products. Moreover,
even if there were alternative ways to insure statutory evasion, Congress
was free to choose the method it found most efficacious and convenient.
legislature . . .
is authorized to pass measures for the protection of the people
. . . in the exercise
of the police power, and is itself the judge of the necessity or
expediency of the means adopted." [FN10]
New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 40, 29 S.Ct. 10,
12, 53 L.Ed. 75 (1908).
Our reading of the Eagle Protection Act is not shaken by the fact that,
until 1959, Alaska was exempted from the strictures of § 668. See 54 Stat. 250, amended by § 14, 73 Stat. 143.
The fact that eagles could be taken, possessed, sold, and purchased
in the Territory of Alaska in no way undercut the general ban on sales in
the 48 States; we do not read
the pre-1959 Alaska exemption as a license to sell Alaska eagles in the
rest of the country, or vice versa.
We are also unpersuaded by appellees' argument that the Eagle Protection
Act does not apply to feathers that have lost their "identities"
as elements in artifacts. This contention is bottomed on the statutory use of the
word bird "part" instead of bird "product."
The distinction between the terms is immaterial:
for example, when Congress amended the Migratory Bird Treaty Act to
specify that it applied to bird products as well as bird parts, Pub.L. 93-300,
88 Stat. 190, the Senate Report indicated that the change was a
clarification rather than a substantive change in the reach of the law.
S.Rep. No. 93-851, p. 3 (1974).
prohibition in the Migratory Bird Treaty Act is couched in language as
expansive as that employed in the Eagle Protection Act.
Title 16 U.S.C. § 703 provides that
except as permitted by regulations made as hereinafter provided in this
subchapter, it shall be unlawful .
. . to pursue, hunt, take,
capture, kill, attempt to take, capture, or kill, possess, offer for sale,
sell, offer to barter, barter, offer to purchase, purchase, deliver for
shipment, ship, export, import, cause to be shipped, exported, or
imported, deliver for transportation, transport or cause to be
transported, carry or cause to be carried, or receive for shipment,
transportation, carriage, or export"
But the Migratory Bird Treaty Act contains no explicit exception
for the possession or transportation of
60 bird parts obtained before the federal protection became effective:
that exception is created by the Secretary's regulation.
50 CFR § 21.2 (1978). Unlike
our analysis under the Eagle Protection Act, therefore, reliance upon the
negative inference from a narrow statutory exemption for the
transportation or possession of pre-existing artifacts is precluded.
[FN11] Nevertheless, the
text, context, and purpose of the Migratory Bird Treaty Act support the
Secretary's interpretative regulations of that enactment.
FN11. The Migratory Bird
Treaty Act, passed in 1918, 40 Stat. 755, predates the Eagle Protection
Act by 22 years. Originally
the legislation implementing a Migratory Bird Convention between Great
Britain (on behalf of Canada) and the United States, the Act now
implements similar treaties between this country and other nations.
See generally Coggins & Patti, The Resurrection and Expansion
of the Migratory Bird Treaty Act, 50 Colo.L.Rev. 165, 169-174 (1979); M. Bean, The Evolution of National Wildlife Law 68-74 (1977).
its face, the comprehensive statutory prohibition is naturally read as
forbidding transactions in all bird parts, including those that compose
pre-existing artifacts. While
there is no doubt that regulations may exempt transactions from the
general ban, [FN12] nothing in the statute requires an exception for the
sale of pre-existing artifacts.
And no such statutory exception can be implied.
When Congress wanted an exemption from the statutory prohibition,
it provided so in unmistakable terms.
Cf. 16 U.S.C. § 711. [FN13]
FN12. The § 703
prohibition is, by its own terms, subject to regulatory exception.
See also 16 U.S.C. § 704.
"Nothing in this subchapter shall be construed to prevent the
breeding of migratory game birds on farms and preserves and the sale of
birds so bred under proper regulation for the purpose of increasing the
The structure and context of this enactment -- to the extent
that they enlighten -- also suggest congressional understanding that
regulatory authorities could ban the sale of lawfully
61 taken birds, except where otherwise expressly instructed by the
statute. If Congress
had assumed that lawfully taken birds could automatically be sold under
the Act, it would have been unnecessary to specify in § 711 that it is
permissible under certain circumstances to sell game birds lawfully bred
on farms and preserves. [FN14] Furthermore,
Congress could not have been unaware that a traditional legislative tool
for enforcing conservation policy was a flat proscription on the sale of
wildlife, without regard to the legality of the taking.
At the time, a number of States, for example, simply prohibited or
restricted possession or sale of wildlife during seasons closed to
hunting. See New York ex rel. Silz v. Hesterberg, supra, at 40, 29 S.Ct.,
at 12. Also before Congress was the Canadian law implementing the
Migratory Bird Treaty, [FN15] and that law itself contained a provision
barring the purchase, sale, or possession of protected bird parts
"during the time when the capturing, killing, or taking of such bird,
nest, or egg is prohibited by law,"
55 Cong.Rec. 5412 (1917). [FN16] (Emphasis
added.) The Canadian
sale ban -- of which Congress was aware -- thus applied not to illegally
taken birds, but rather to all protected birds during the season in which
hunting was prohibited. Against
this background, the absence of a statutory exemption for pre-existing
avian artifacts implies that the Migratory Bird Treaty Act was intended to
embrace the traditional conservation technique of banning transactions in
protected birds, whenever taken.
FN14. In fact, the Conference Report
accepting the floor amendment that became § 711 was actually
withdrawn in order to add language indicating that lawfully
bred birds could be sold.
See 56 Cong.Rec. 8015 (1918);
id., at 8130, 8430.
FN15. 55 Cong.Rec. 5412-5413 (1917)
Cong.Rec. 7372 (1918) (House). Britain entered into
the treaty on behalf of Canada.
FN16. The Canadian statute indicates that there
might be a lawful excuse for possessing or selling birds out
of season, but not what such an excuse would be.
Related statutes may sometimes shed light upon a previous
enactment. Cf. United States v. Aluminum
Co. of America, 148 F.2d 416, 429 (CA2 1945) (L. Hand, J.).
Other conservation legislation enacted by Congress
has employed the enforcement technique of forbidding the sale
of protected wildlife without respect to the lawfulness of
the taking. The
Eagle Protection Act is a notable example.
The more recent Endangered Species Act of 1973, as
originally framed, prohibited the sale of products or parts
of endangered species, without an exception for those products
legally held for commercial purposes at the time of the Act's
passage. [FN17] See
16 U.S.C. § 1538; United
States v. Kepler, 531 F.2d 796 (CA6 1976);
Delbay Pharmaceuticals, Inc. v. Department of Commerce,
409 F.Supp. 637, 641-642, 644 (D.C.D.C.1976);
see also H.R.Rep. No. 94-823, pp. 3-4 (1976) (discussing
an amendment to the Endangered Species Act).
And when Congress has meant to exempt lawfully taken
items from the retroactive application of statutory prohibitions,
it has taken care to do so explicitly, see 16 U.S.C. § 1372
(Marine Mammal Protection Act of 1972);
16 U.S.C. § 1538(b) (Endangered Species Act of 1973),
or it has specifically amended the statute for that purpose,
see 90 Stat. 911, amending 16 U.S.C. § 1539 (Endangered Species
Act); 92 Stat.
3760, amending 16 U.S.C. §§ 1538 and 1539 (Endangered Species
contrast, Congress has never established a pre-existing-artifacts
exception to the Migratory Bird Treaty Act, even though it
has amended the statute on several occasions. [FN18]
FN17. In 1976, Congress specifically
amended the Act to establish a very limited sales exemption
for products of animals lawfully owned for commercial purposes
before the Act came into effect. Pub.L. 94-359, 90 Stat.
911, amending 16 U.S.C. § 1539.
The amendment was circumscribed in scope and merely
authorized but did not order the Secretary of Commerce to
grant exemptions for pre-Act animal products.
FN18. In arguing the position that
the statute prevents only the sale of illegally taken birds,
appellees rely upon the language of the 1972 Migratory Bird
Convention with Japan, incorporated into the Migratory Bird
Treaty Act in 1974.
Pub.L. 93-300, 88 Stat. 190.
The Convention provides that "[a]ny sale, purchase
or exchange of these [migratory] birds or their eggs, taken
illegally, alive or dead, and any sale, purchase or exchange
of the products thereof or their parts shall
. . . be
added.) But the language of the
Convention, like the terms of the other Conventions, does
not carry great weight in the interpretation of the statute.
There are material variations in the particulars of
each of the Conventions, see Coggins & Patti, supra n.
11, at 173-174; Bean,
supra n. 11, at 70-73;
it is therefore hazardous to look to any single Convention
for definitive resolution of a statutory construction problem.
Furthermore, inasmuch as the Conventions represent
binding international commitments, they establish minimum
protections for wildlife;
Congress could and did go further in developing domestic
See id., at 74-76.
We are therefore persuaded that the Migratory Bird Treaty
Act empowers the Secretary of the Interior to bar commercial
transactions in covered bird parts in spite of the fact that
the parts were lawfully taken before the onset of federal
see no indication to the contrary. [FN19]
It follows 64 that the Secretary could properly
permit the possession or transportation, and not the sale
or purchase, of pre‑existing bird artifacts. [FN20]
Accordingly, we disagree with the District Court's
interpretation of the Act as inapplicable to pre‑existing
legally obtained bird parts.
FN19. Our interpretation of the statute
does not depart from any course of construction adopted by
other courts. Although appellees argue
that several courts have determined that lawfully taken birds
may be sold under the Migratory Bird Treaty Act, we do not
read the cases as supporting appellees' position.
Two of the cited cases, United States v. Hamel, 534
F.2d 1354 (CA9 1976) (per curiam ), and United States v. Blanket,
391 F.Supp. 15 (W.D.Okl.1975), neither decide nor imply a
decision as to the statutory question posed here.
Language favorable to appellees in United States v.
Aitson, No. 74‑1588 (CA10, July 21, 1975), is merely
dictum in an unpublished opinion.
Contrast also United States v. Richards, 583 F.2d 491
(CA10 1978). United
States v. Marks, 4 F.2d 420 (S.D.Tex.1925), did hold it impermissible
to punish the sale of birds taken before the Migratory Bird
Treaty Act was passed.
But that ruling rested upon the court's view that Congress'
authority to regulate the birds must rest wholly upon the
treaty rather than the commerce power.
Whatever the logic of that ruling, the underlying assumption
that the national commerce power does not reach migratory
wildlife is clearly flawed.
See, e. g., Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct.
1727, 60 L.Ed.2d 250 (1979). Thus, only two early district
Court cases, both authored by the same judge, sustain the
statutory proposition advanced by appellees.
United States v. Fuld Store Co., 262 F. 836 (D.C.Mont.1920);
In re Informations Under Migratory Bird Treaty Act,
281 F. 546 (D.C.Mont.1922).
The cases involved no more than a cursory inquiry into
the statute, and we find them unconvincing.
FN20. Indeed, heightened restrictions on the sale or purchase of
migratory bird parts were appropriate in light of congressional
recognition of the danger to wildlife posed by commercial exploitation.
The 1960 amendments to the Migratory Bird Treaty Act specifically
addressed that problem by stiffening penalties for the taking of protected
birds with intent to sell and for the sale of protected birds.
74 Stat. 866; see
H.R.Rep. No. 1787, 86th Cong., 2d Sess. (1960);
S.Rep. No. 1779, 86th Cong., 2d Sess. (1960), U.S.Code Cong. &
Admin.News, p. 3459.
disagree with the District Court's holding that, as construed to authorize
the prohibition of commercial transactions in pre-existing avian
artifacts, the Eagle Protection and Migratory Bird Treaty Acts violate
appellees' Fifth Amendment property rights because the prohibition wholly
deprives them of the opportunity to earn a profit from those relics.
FN21. Although this argument appears to have been cast in the
District Court in terms of economic substantive due process, before this
Court appellees have used the terminology of the Takings Clause. The
Secretary has raised the question of appellees' standing to assert a
takings claim with respect to their artifacts.
He asserts that appellees have not clearly stated that they
acquired their property interest in the bird artifacts before the sales
ban came into force. If
they have not, the Secretary argues, then the "value of any artifacts
purchased by appellees after the effective date of the Act had already
been diminished by the applicability of the Act."
Brief for Appellants 30.
This contention is misplaced.
Even assuming that appellees have not sufficiently alleged pre-effectiveness
possession, they have standing to urge their constitutional claim.
Because the regulation they challenge restricts their ability to
dispose of their property, appellees have a personal, concrete, live
interest in the controversy. See
Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).
The timing of acquisition of the artifacts is relevant to a takings
analysis of appellees' investment-backed expectations, but it does not
erect a jurisdictional obstacle at the threshold.
Of course, there is no standing to assert a takings claim by those
who are merely employed in selling artifacts owned by others.
All appellees, however, may face future criminal prosecutions for
violations of the statutes, and that, of itself, suffices to give them
standing to litigate their interest in the construction of the statutes.
65 Penn Central
Transportation Co. v. New York City, 438 U.S. 104, 123-128, 98 S.Ct. 2646,
2659-2662, 57 L.Ed.2d 631 (1978), is our most recent exposition on the
Takings Clause. That
exposition need not be repeated at length here.
Suffice it to say that government regulation -- by definition --
involves the adjustment of rights for the public good.
Often this adjustment curtails some potential for the use or
economic exploitation of private property.
To require compensation in all such circumstances would effectively
compel the government to regulate by purchase.
"Government hardly could go on if to some extent values
incident to property could not be diminished without paying for every such
change in the general law." Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322
(1922); see Penn Central, supra, 438 U.S., at 124, 98 S.Ct., at 2659.
The Takings Clause, therefore, preserves governmental
power to regulate, subject only to the dictates of "
'justice and fairness.' " Ibid.;
98 S.Ct., at 2659; see Goldblatt v. Hempstead,
369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962).
There is no abstract or fixed point at which judicial
intervention under the Takings Clause becomes appropriate.
Formulas and factors have been developed in a variety
of settings. See Penn Central, supra,
438 U.S., at 123-128, 98 S.Ct., at 2659-2662.
Resolution of each case, however, ultimately calls
as much for the exercise of judgment as for the application
The regulations challenged here do not compel the surrender
of the artifacts, and there is no physical invasion or restraint
upon them. Rather,
a significant restriction has been imposed on one means of
disposing of the artifacts.
But the denial of one traditional property right does
not always amount to a taking.
At least where an owner possesses
66 a full "bundle" of property rights, the destruction
of one "strand" of the bundle is not a taking, because
the aggregate must be viewed in its entirety.
Compare Penn Central, supra, at 130-131, 98 S.Ct.,
at 2662-2663 and United States v. Twin City Power Co., 350
U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956), with Pennsylvania
Coal Co. v. Mahon, supra, and United States v. Virginia Electric
& Power Co., 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838
also Michelman, Property, Utility, and Fairness:
Comments on the Ethical Foundations of "Just Compensation"
Law, 80 Harv.L.Rev. 1165, 1230-1233 (1967).
In this case, it is crucial that appellees retain the
rights to possess and transport their property, and to donate
or devise the protected birds.
is, to be sure, undeniable that the regulations here prevent
the most profitable use of appellees' property.
Again, however, that is not dispositive.
When we review regulation, a reduction in the value
of property is not necessarily equated with a taking.
Compare Goldblatt v. Hempstead, supra, 369 U.S., at
594, 82 S.Ct., at 990, and Hadacheck v. Sebastian, 239 U.S.
394, 36 S.Ct. 143, 60 L.Ed. 348 (1915), with Pennsylvania
Coal Co. v. Mahon, supra. [FN22]
In the instant case, it is not clear that appellees
will be unable to derive economic benefit from the artifacts;
for example, they might exhibit the artifacts for an
At any rate, loss of future profits -- unaccompanied
by any physical property restriction -- provides a slender
reed upon which to rest a takings claim.
Prediction of profitability is essentially a matter
of reasoned speculation that courts are not especially competent
to perform. Further,
perhaps because of its very uncertainty, the interest in anticipated
gains has traditionally been viewed as less compelling than
other property-related interests.
Cf., e. g., Fuller & Perdue, The Reliance Interest
in Contract Damages (pt. 1), 46 Yale L.J. 52 (1936).
FN22. It should be emphasized that
in Pennsylvania Coal the loss of profit opportunity was accompanied
by a physical restriction against the removal of the coal.
that bar trade in certain goods have been upheld against claims
of unconstitutional taking.
For example, the Court has sustained regulations prohibiting
the sale of alcoholic beverages despite the fact that individuals
were left with previously acquired stocks.
Everard's Breweries v. Day, 265 U.S. 545, 44 S.Ct.
628, 68 L.Ed. 1174 (1924), involved a federal statute that
forbade the sale of liquors manufactured before passage of
the statute. The
claim of a taking in violation of the Fifth Amendment was
tersely rejected. Id.,
at 563, 44 S.Ct., at 633. [FN23]
Similarly, in Jacob Ruppert, Inc. v. Caffey, 251 U.S.
264, 40 S.Ct. 141, 64 L.Ed. 260 (1920), a federal law that
extended a domestic sales ban from intoxicating to nonintoxicating
alcoholic beverages "on hand at the time of the passage
of the act," id., at 302, 40 S.Ct., at 150, was upheld.
Brandeis dismissed the takings challenge, stating that "there
was no appropriation of private property, but merely a lessening
of value due to a permissible restriction imposed upon its
Id., at 303, 40 S.Ct., at 151.
See Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31
L.Ed. 205 (1887).
FN23. It is not significant that
the statute considered in Everard's Breweries had been passed
under the Eighteenth (Prohibition) Amendment.
The Court did not suggest that the Amendment gave Congress
a special prerogative to override ordinary Fifth Amendment
FN24. Although the beverage owner in Jacob Ruppert retained the
ability to export his product or to sell it domestically for purposes
other than consumption, see 251 U.S., at 303, 40 S.Ct., at 151;
Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 157, 40 S.Ct.
106, 108, 64 L.Ed. 194 (1919), the domestic sales ban was undoubtedly
No importance should be attached to the fact that the enactment
in Jacob Ruppert was promulgated pursuant to the war power.
But cf. United States v. Central Eureka Mining Co.,
357 U.S. 155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958).
is true that appellees must bear the costs of these regulations.
But, within limits, that is a burden borne to secure
"the advantage of living and doing business in a civilized
Coal Co. v. Mahon, supra, 260 U.S., at 422, 43 S.Ct., at 163
(Brandeis, J., dissenting).
We hold that the simple prohibition of the sale of
lawfully acquired property in this
68 case does not effect a taking in violation of the Fifth
FN25. Appellees also briefly argue
that the regulations in this case interfere with their right
to engage in a lawful occupation.
Even if we were inclined to exhume this variant of
the theory of substantive due process, it would not be applicable
may still sell artifacts that do not consist in part of protected
CHIEF JUSTICE concurs in the judgment of the Court.