The     Honorable             Clayton           T.      Garrison                                  Opinion           No.     H-      150
Executive          Director
Texas       Parks        and       Wildlife           Department                                  Re:          State      and     federal
John      H.    Reagan            Building                                                                     authority          under       the
Austin,         Texas      78701                                                                               Migratory            Bird      Treaty
                                                                                                               Act,       16 U.S.        C.   § § 703,
Dear      Mr.      Garrison:                                                                                   et seq.


          You      have       requested               our      opinion            concerning             the jurisdiction                 of the
Secretary          of the         Interior           and      the     Texas          Parks         and       Wildlife       Department
over      migratory           birds.            Specifically,                 you       ask:


                                    “Does         the      Secretary                of the     Interior            by virtue
                       of the       Migratory                 Bird        Treaty,          the Migratory                  Bird
                       Treaty        Act,         and       resulting              regulations              have      authority
                       to close           St.    Charles              Bay         to the hunting,               taking,          cap-
                       turing        or    killing          of migratory                  birds?        ”


          You      indicate          that       the     “opinion             is     requested           in order           to ascertain             the
jurisdiction           of the        Department                 [of       Parks         and    Wildlife]            in that       portion       of St.
Charles         Bay     which        has        not been             closed         by previous               action        of the Secretary
of the     Interior.          ”


          At     our    invitation,              the     Secretary                 of the      Interior         has       submitted           a brief
on this        question.            By way            of factua,l            background,                he indicates              that:


                       ” . .       . St.        Charles             Bay      is     a finger        of the         Gulf     of Mexico
                       extending            into      the      midst         of the Aransas                   National           Wildlife
                       Refuge.              The       refuge          is,     among           other         things,       the     only
                       wintering            area        for     whooping                cranes,          which,         in addition
                       to being           migratory             birds,            are    listed       as     a rare        and     endan-
                       gered  species.                      These           birds       move       back        and forth          across
                       the bay and are                   threatened                 with      accidental              destruction
                       from        hunting           as well          as being            frightened            and       disturbed




                                                                     p.     701
The     Honorable               Clayton            T.      Garrison,                page       2     (H-150)




                        by the          noise       and        activity            normally            associated                with
                        hunting.              Closing            certain            areas          of the     bay     was          seen
                        as a necessary                      measure                to protect           these        birds.           ”


          The         United          States        has       executed              conventions               with     Great              Britain
(August         16,     1916),          39 Stat.           1702,and             Mexico            (February           7,      1936),            50 Stat.
1311, for        the     protection                of migratory                    birds.          Pursuant           to those                 treaties,
the     Congress              enacted          and      later         reaffirmed               the     Migratory                 Bird          Treaty
Act,     16 USC             $ $703        et seq.,             which         makes           it unlawful             to pursue,                hunt,       take,
capture         or     kill     any      migratory                 bird      except          as     permitted              by regulations
adopted         by the         Secretary                of the        Interior.               The      Secretary             has          designated
part     of St.         Charles           Bay       as a closed                 area         in which         hunting            is       not permitted.
21 Fed.        Reg.         6513       (1956).


          It has         long         been      settled          that        the      enactment             of the     Migratory                      Bird
Treaty         Act      was      within           the      power          of Congress.                  Missouri              v.       Holland,              252
U.S.      416,        40 S. Ct. 382                (1920).          Therefore,                 the Act         and         the     regulations                 pro-
mulgated             under       it     are       superior            to any          conflicting             law     of this             State.         U.S.
Constitution,                 Article         6,     cl.      2.      The        Secretary             of the        Interior              has        broad
discretion            under           the Act.             See      Sickman             v.     U.S.,         184 F.          2d 616 (7th                Cir.       1950)
cert.     denied            341 U.S.            939,          71 S.       Ct.      999       (1951);     Lansden             v.       Hart,           180 F.        2d
679     (7th     Cir.         1950)       cert.         denied         340 U.S.               824,      71 S.        Ct.     58 (1950).


           The        Act      does       permit           concurrent                  regulation            by the         State          so long           as    the
state     laws        and       regulations                are      not inconsistent                    with     federal              law        or    provide
additional            protection              to migratory                   birds.          16 USC5          708.         See        Uniform           Wildlife
Regulatory              Act,       Art.        978j-1,             V. T. P. C.


           Therefore,                  in answer               to your          question,             it is     our        opinion             that     the Secretary
of the     Interior             may       close         all      or part           of St.      Charles          Bay         to hunting.              The Texas
Parks      and        Wildlife            Department                  may          regulate          areas      over         which             the Secretary
has     not asserted                  jurisdiction               and also             may      regulate         areas             the      Secretary               has
closed         if its       regulations              are       consistent               with       the Secretary’s                        or   provide            additional
protection            to migratory                  birds.

                                                                       SUMMARY

                                        The     Secretary                 of the       Interior         has     authority                  under        the
                         Migratory                 Bird       Treaty            Act     to prohibit            hunting             in all        or     part




                                                                        p,      702
The   Honorable         Clayton       T.      Garrison,       page        3    (H-150)




                  of St.     Charles          Bay.    The     Texas           Department           of Parks
                  and    Wi,ldlife      may      promulgate           and      enforce         rules     and
                  regulations          over     portions       of the         Bay     in which         the
                  Secretary          has    not asserted           jursidiction.               It may
                  regulate        portions        of the     Bay     covered          by the      federal
                  proclamation              so long       as the    state       regulations            are
                  consistent         with      the federal         regulations            or   provide
                  additional         protection       to migratory               birds.


                                                                   Very       truly    yours,




APPRQVED:




DAVID     M.   KENDALL,                Chairman
Opinion     Committee




                                                      p.     703
