78 
FOREST AND STREAM 
Jan. 17, 1914. 
Relations of State anil Federal Authorities Under Migratory Bird Law. 
By T. S. PALMER 
T HE enforcement of the act approved March 
4, 1913, providing for the protection of 
migratory birds presents many new and 
difficult questions. The law not only imposes 
new duties on the Department of Agriculture but 
introduces a new principle in game protection 
and new problems in connection with practical 
warden service. No state or government has 
hitherto been called upon to provide regulations 
for the protection of game so far reaching and 
at the same time affecting so many different 
interests. 
Illustration of the Problem of Migratory Bird 
Protection 
The problem of protecting migratory birds 
is primarily a practical one rather than a legal 
one. Briefly stated, it is a method of providing 
some system under which birds which travel from 
one part of the country to another may be given 
adequate protection during the nesting season, 
reasonable protection during winter and reason¬ 
ably safe passage between their summer and 
winter grounds. In some respects it is much 
like a traffic problem of a great railroad in which 
the safety of the traveling public is provided 
for at destination and en route. This result is 
accomplished by operating trains on parallel 
tracks, local or suburban traffic being handled 
on one set of tracks and through traffic on an¬ 
other. Trains are constantly run in the same 
and in opposite directions, but without accident 
so long as the system works smoothly and no 
attempt is made to attain extraordinary speed or 
to cross over from one track to another. In 
the problem under consideration the local traffic 
may be represented by the resident birds pro¬ 
tected by state laws enforced by state authori¬ 
ties, and the through traffic by the interstate 
migrants protected under Federal law and Federal 
authority. Both authorities are engaged in the 
same general work of insuring the safety of 
the birds resident and migratory, and there is 
no apparent reason why they should not work 
together as smoothly as two parts of a great 
transportation system. 
Some Misapprehensions Regarding the New 
Law. 
People interested in protection of migratory 
birds may be divided into two classes: (1) 
Those who pin their faith entirely on the Federal 
law and with the calm assumption that this super¬ 
sedes all existing state laws, conclude that the 
problem of migratory bird protection has been 
solved; (2) Those who see only conflict in the 
Federal and state regulations and without con¬ 
sidering whether the difference can be harmonized 
'conclude that the law is unconstitutional and the 
situation well nigh hopeless. The Federal law 
can more properly be described as supplementing 
than superseding state laws, and if properly ad¬ 
justed, can be made to fit and work harmoniously 
with existing conditions. The enthusiastic game 
protector would override local regulations and 
insist on rigid and uniform enforcement of the 
letter of the Federal law. The more cautious 
individual, interested rather in the legal than 
the practical questions, would, first of all, de¬ 
termine the constitutionality of the statute before 
attemptihg to put it into general operation. The 
question of constitutionality will be determined 
in due time by the courts. It is not necessary 
at this time to enter into an argument on this 
question, but attention may be called to a few 
points which seem to be generally overlooked. 
It is easy to dismiss the matter with the 
simple declaration “The law is unconstitutional,” 
but this immediately raises the question, “What 
law or what provision of law?” The migratory 
bird law was not enacted as a separate act, it has 
no statutory title, but forms four paragraphs 
of an act providing appropriations for the De¬ 
partment of Agriculture for 1914. Clearly the 
entire appropriation act is not unconstitutional 
and the criticism must be directed against these 
four paragraphs relating to migratory birds 
which contain several different propositions. 
(1) A declaration that migratory birds shall 
be under the protection of the United States; (2) 
An authorization for the Department of Agri¬ 
culture to prepare regulations; (3) A penalty for 
violation of these regulations; and (4) An ap¬ 
propriation for carrying out the law. No one 
can successfully prove that it is unconstitutional 
for the Department of Agriculture to make regu¬ 
lations, or for Congress to make appropriations 
for such work. Differences of opinion may arise 
as to whether or not a declaration that migratory 
birds are under the protection of the Federal 
Government is unconstitutional, depending on 
whether this is interpreted as merely a declara¬ 
tion, or an invasion of a field hitherto occupied 
by the States. The main difference of opinion 
is whether or not the penalty for violation of 
these regulations can be enforced in a Federal 
court. Evidently then the question turns on the 
declaration in the first paragraph and the man¬ 
ner of enforcement. This is a very different 
proposition from declaring the entire law un¬ 
constitutional. To some it may seem a differ¬ 
ence without a distinction, but such is not the 
case. The mere fact that the department has 
made regulations more or less suited to con¬ 
ditions in different parts of the country, will go 
a long way toward bringing order out of chaos. 
Whether the courts will determine ultimately 
that these regulations can or can not be enforced 
in the Federal courts will make comparatively 
little difference provided in the meantime the 
state laws can be brought into harmony with these 
regulations, for the problem then becomes merely 
one of method in applying the machinery of 
enforcement. 
Geer v. Connecticut. 
It is often urged that the decision of the 
Supreme Court in the case of Geer v. Connecticut 
acts as an effective bar to any Federal legislation 
on migratory birds inasmuch as the court then 
held that game was entirely under the jurisdic¬ 
tion of the state. Those who hold this view 
apparently read something into the decision of 
the Supreme Court that is not there. The ques¬ 
tion presented to the court was simply the dis¬ 
tinction between individual and state property 
rights in game, whether game having been re¬ 
duced to possession was the absolute property of 
the individual who had killed it, or whether 
state laws regulating its use could be enforced. 
No question of the distinction between state and 
Federal authority was presented to the court and 
no decision on this point was rendered. 
Game Protection on National Reservations. 
As a rule, Federal laws, especially game 
laws, are much less explicit and incomplete than 
State laws, but much may be accomplished un¬ 
der imperfect statutes and under conditions which 
at first sight appear almost hopeless. The Federal 
Government is now effectually protecting game 
under conditions that from a legal standpoint may 
seem utterly chaotic and impossible. Some of 
the National Parks have special and effective 
acts of Congress protecting game. Others have 
no such statutes and must have recourse to in¬ 
direct means to prevent destruction of some of 
their most attractive features. Still others are 
not only without special statutes but the state 
has ceded its jurisdiction over the Park, and 
Congress has not yet accepted the cession so that 
neither state or Federal laws can operate in the 
usual manner. On the National Forests no Fed¬ 
eral game laws are in force and all reliance for 
protection of game must be based on state laws. 
But on all these reservations, both national parks 
and national forests (and the latter in the West 
comprise most of the best game districts in the 
various states) the game is actually and effec¬ 
tively protected. 
Differences Between the Regulations and the 
State Law. 
It has been said that there are “many serious 
divergencies” between the Federal regulations and 
the Conservation Law of New York. 'As the 
Federal law applies only to close seasons the di¬ 
vergence must be in the matter of seasons only, 
and may be briefly stated as follows: 
Three cases in which the open seasons are 
apparently lengthened under the Federal law a 
few days beyond the limits fixed by the state 
law: 
(a) Waterfowl on Long Island, 5 days, Janu¬ 
ary 11-15. 
(b) Rails, coots, and gallinules, 31 days dur¬ 
ing the month of December. 
(c) Woodcock, 15 days in the latter part 
of November. 
Three cases in which the open seasons are 
shortened under the Federal law: 
(a) Waterfowl (except on Long Island), 
26 days, December 16-January 10. 
(b) Black-bellied and golden plover, jack- 
snipe and yellowlegs during the first two weeks 
in August. 
(c) Suspension for 5 years of the open sea¬ 
son for curlew and all small shorebirds. 
The first three cases are of little practical 
importance. The five days’ duck shooting in mid¬ 
winter amounts to very little except on Long 
Island; the presence of a rail, coot or gallinule 
anywhere in New York in the month of De¬ 
cember is such a rarity as to be worthy of record, 
and the number of woodcock found in the state 
during the latter part of November is negligible. 
In other words, nature has practically closed the 
season for rails, coots, gallinules and woodcock 
long before the date under the regulations. Each 
of these points was carefully considered by the 
committee which prepared the regulations and 
it was decided that they were of so little im¬ 
portance that it was not worth while to make an 
Exception in any of these cases. There is, how¬ 
ever, not the slightest objection to having the 
state enforce the provisions of its law to the 
letter on these birds and such action may result 
in very slight additional protection. Reference 
