Petition for Writ of Certiorari — Lansden v. Hart

FILE COPY i

SEP 21 1948

CHARLES ELMORE v.

CLER

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1948.

No 289

DAVID V. LANSDEN et al., Petitioners,

VS.

WILLIAM W. HART, as United States Attorney for the

Eastern District of Illinois, et al., Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Seventh Circuit

and

BRIEF IN SUPPORT OF PETITION.

DAVID ¥. LANSDEN, ROBERT L. LANSDEN,

216 Seventh Street, 216 Seyénth Street,

Cajro, Illinois, Caifo, Illinois,

“Pro Se. Pro Se.

\ JOHN F. DONELAN, ROBERT L. LANSDEN,

Munsey Building, 216 Seventh Street,

Washington, D. C., Cairo, Illinois,

Counsel for Petitioners Not Appearing Pro Se.

Sr, Louis Law Patntine Co., 415 North Eigfith Street. CE ntral 4477.

INDEX.

Subject Index.

Petition for writ of certiorari

Statement of the matter involved.

Basis of this Court’s jurisdiction

Questions presented

Reasons relied on for allowance of writ.

Prayer for writ

Brief in support of petition

Opinions below

Jurisdiction

Statement of the case

Specification of errors

Appendix A—Presidential Proclamation 2739

Appendix B—Notice of proposed rule making

Appendix C—Presidential Proclamation 2748

Appendix D—Governor’s Proclamation, State of Ili-

nois, Executive Department

Cases Cited.

American Express Co. v. People, 133 Tl. 649

Benton v. Marr, 364 Ill. 628

Brandenburg v. Doyle, 12 F. Supp. 342

C. & S. Air Lines v. Waterman S. S. Corp., vee

Federal "Trade Commission v. Bunte Bros., 312 U. 8.

349, 85 L. Ed. 881, 884

ii

Geer v. Connecticut, 161 U. S. 519, 40 L. Ed. 793..... 96

Grattan v. Ahlberg Bearing Co., 373 Ill. 455......... 18

Gratz v. McKee, 270 F'. 713, 718-720, C. C. A. 8....... 2%

Gratz v. McKee, 260 U. S. 127, 67 L. Ed. 167......... 26

Kennedy v. Silas Mason Co., 334 U. S. ..., 92 L. Ed.

WP Richt sawed bibasbansas et wksecicus Shouse 17, 30

mngner:v,; Pouple, SU TGR: «co iia ek eis 26

Missouri v. Holland, 252 U. S. 416, 64 L. Ed. 641... .15,7

Morgan v. U.S., 298 U. S. 468, 80 L. Ed. 1288........ 18, 31

Packard v. Banton, 264 U. S. 140, 145, 68 L. Ed. 596

DUE wivGek Ge heb ab Shwe kbs awidne chs dade 15, %

Price v. Johnston, 334 U.S. ..., 92 L. Ed. 993...... 18, 30

Schulte v. Warren, 218 Il. 108. i Vrivddin che eehadded 15,

Swan Island Club, Inc., v. Ansell, 51 F. 2d 337, C. ¢.

PE Sk cee eke aha Bek ah haens cube kaa deka 14, 25

Takahashi v. Fish and Game Commission U. 8.

5 a Bk a book ewe ABR ARES Nees kas 26

Toomer v. Witsell, ... U.S. ..., 92 L. Ed. 1131...... %6

Statutes Cited.

Administrative Procedure Act, 5 U.S. C. 1001

ESET Se py eae aie pC ry RENE 3, 5, 6, 8, 10, 12, 16, 24, 29

Federal Register Act, Sec. 8, 44 U. S. C. 308. .. .5, 18, 24, 30

Game Code of Illinois, Sec. 3D, Ill. Rev. Stat. 1947,

Re: SCM WON NAGs oh dso eee Nh ucbcuvehutwancsces 5

Game Code of Illinois, See. 4, Ill. Rev. Stat. 1947, Chap.

Se SEE occ bebevakeudcenetes inch cduecbacied 5, 32

Game Code of Illinois, See. 5, Ill. Rev. Stat. 1947, Chap.

DM dai C cA de eu hs chpanca as smeresee Keener 5

Game Code of Illinois, Sec. 31, as amended by Act of

July 21, 1947, Ill. Rev. Stat. 1947, Chap. 61, See.

5646S s FELD SED 4h Ae age Vike ann ce bie taaaseeas 32

Governor’s Proclamation (Illinois), Oct. 2, 1947 (see

PR Eee Peer eer Te eos oe 9, 31, 42

Illinois Constitution, Art. IT, Sec. 2................. 14, 32

Migratory Bird Treaty Act, 16 U. 8. C. 703

CR cease nents tannsenscascss 4, 5, 12, 13, 16, 23, 28

Nathanson: Some Comments on the Administrative

Procedure Act, 41 Ill. L. Rev. 368................4. 29

ili

Notice of Proposed Rule Making, 12 F. R. 6273 et seq.,

ey IED BE noi 5 0 aS hed h s sev ck nea ede wenn’ 6, 38

Notice of Proposed Rule Making, 13 F. R. 1191....... 31

Presidential Proclamation 2245, 2 F. R. 1355

Oe OOS cc scecevenvesntescusbenesuteésebaseseneens 27

Presidential Proclamation 2345, 4 F. R. 3621

SONG, 2 pce ar ec cncccccscdd bn vbbn se 0b en64 6040 50K68 27

Presidential Proclamation 2616, 9 F. R. 9873

UE canst. ass Soepaes Un cies hbedihawan chbeensi.

Presidential Proclamation 2739, 12 F. R. 5269,

eg Be ee rere eree 5, 6, 8, 10, 12, 27, 33

Presidential Proclamation 2748, 12 F. R. 6521 et seq., |

see Appendix C..... 3, 6, 8, 10, 11, 14, 24, 27, 28, 30, 31, 40

Presidential Proclamation 2801, 13 F. R. 4411

OEE Pere rere Cera ya rr yer 6, 12, 27, 28

United States Constitution, 5th Amendment......... 14, 31

United States Constitution, 14th Amendment........ 14, 31

a

NVR rng eb ea

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1948.

DAVID V. LANSDEN et al., Petitioners,

VS.

WILLIAM W. HART, as United States Attorney for the

Eastern District of Illinois, et al., Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Seventh Circuit.

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States

of America:

Your petitioners, David V. Lansden, John A. Lansden,

Robert L. Lansden, Charles Sickman, Kenneth L. Martin,

Joseph A. Regenstein, Jr., Paul L. Ryal, Lee P. Stenzel,

Gertrude Stenzel, Beatrice S. Rolwing and Frank Pettit,

respectfully present their petition for the issuance of a

TVET 1 OMI as

writ of certiorari directed to the United States Court of

Appeals for the Seventh Circuit and show to this Honor.

able Court the following:

I.

STATEMENT OF THE MATTER INVOLVED.

This action was brought in the District Court of the

United States for the Eastern District of Illinois by peti-

tioners, who are landowners and hunting club owners,

managers or operators, to enjoin respondents, who are

Federal and State law enforcement officials, from enfore-

ing the provisions of Presidential Proclamation 2748 and

a Proclamation of the Governor of the State of Illinois,

both dated October 1, 1947. Such proclamations perma-

nently closed an area of approximately 20,000 acres in

Alexander County, Illinois, to the hunting of all species

of wild geese. The hunting lands involved in the case

are all privately owned and wholly within said closed area.

Petitioners’ motion for preliminary injunction was de-

nied after hearing on November 13, 1947. Appeal from the

denial of the preliminary injunction was taken to the

United States Court of Appeals for the Seventh Circuit

pursuant to old 28 U. S. C., Sec. 227, now in substance

found at new 28 U. S. C., Sec. 1292, which permits an

appeal to a Court of Appeals from the denial of a motion

for preliminary injunction.

On May 5, 1948, the United States Court of Appeals for

the Seventh Circuit affirmed the judgment of the District

Court. Within time allowed, petitioners filed a petition

for rehearing, which petition was, on June 23, 1948, denied.

Thereupon the judgment of the Court of Appeals became

final.

ae Fo

Most of the facts, and some of the statements that can

be considered as legal conclusions, alleged in the com-

plaint (R. 3-21) were admitted by stipulation at the hear-

ing on the motion for preliminary injunction (R. 27-28).

The stipulation in large part limited the case to legal

rather than factual questions.

The admitted and conceded basis of jurisdiction in the

District Court was that the matter in controversy arose

ander the Constitution or laws of the United States or

treaties made or which shall be made under their author-

ity (R. 4). 28 U.S. C., Sec. 41 (1)—old title; 28 U. 8. C.,

Sec. 1331—new title. That the jurisdictional amount was

involved was conceded except as to petitioners Stenzels.

Petitioners also alleged that they are persons who have

suffered legal wrong because of agency action and were

adversely affected and aggrieved by such action within

the meaning of Section 10 of Administrative Procedure

Act, 5 U. S. C., See. 1009, and as such and by virtue of

such cited section were entitled to judicial review of

Presidential Proclamation 2748 in an action seeking

injunction. Such allegations were necessary because, even

with the admitted and conceded basis of jurisdiction, peti-

tioners might have been without a remedy unless judicial

review of Presidential Proclamation 2748 could be had.

Because petitioners Stenzels specifically alleged (R. 11)

that the sum of $3,000.00 was not involved in their portion

of the action, a decision was required as to the necessity

of jurisdictional amount in judicial review of proceedings

pursuant to Section 10 of the Administrative Procedure

Act, 5 U. S. C., See. 1009.

The petitioners Lansdens, Regenstein and Rolwing are

landowners upon whose lands hunting facilities have been

developed over a period of years for the taking of migra-

tory waterfowl, principally and almost exclusively geese.

(ERO T TRCW NEE MER HRA oe

ae oe

Heavy capital investments have been made in the develop.

ment of such facilities. Such five petitioners operated

hunting clubs as businesses, charging hunters daily hunt.

ing fees, and such businesses were flourishing and profita-

ble (R. 6-12).

Petitioners Sickman, Martin, Ryal and Pettit were ten-

ants on the above lands, operated the hunting clubs, and

shared in the receipts from the hunting on the farms

Their shares in the hunting receipts constituted for such

petitioners one of their principal sources of livelihood (R.

6-12).

Petitioners Stenzels own lands which have been de-

veloped and used by them for hunting (R. 11).

It is conceded that the enforcement of Presidential

Proclamation 2748 and the Proclamation of the Governor

of Illinois will virtually destroy the value of petitioners’

hunting enterprises (R. 12).

All of the lands involved in this case are wholly within

the closed area (R. 6, 8, 9, 11), and such closed area sur-

rounds a game preserve of approximately 3,544 acres of

land and water wholly owned and controlled by the State

of Illinois, known as Horse Shoe Lake State Game Pre-

serve (R. 6).

There is no land owned or controlled by the United

States adjacent or contiguous to the Horse Shoe Lake

State Game Preserve, and in the closed area and in Alex-

ander County, Illinois, there is no area of the United States

set aside by the United States as a bird, game or other

wild life reservation, breeding ground or refuge (R. 6).

Respondents are Federal and State prosecutors and

game wardens (R. 3-4), charged with the enforcement in

Alexander County, Illinois, of the Migratory Bird Treaty

nweiiilin

Act, 16 U. S. C., Sec. 703 et seq., and regulations made

thereunder. Under the Game Code of Illinois, Ill. Rev.

Stat., Chap. 61, Sees. 137, 139, 165, the Federal and State

officials can enforce both the Federal and State laws.

It is conceded that the respondent game wardens are

enforcing the proclamations and that respondents Hart

and Berbling, as United States Attorney for the Eastern

District of Illinois, and State’s Attorney of Alexander

County, Illinois, respectively, will prosecute any violations

of the proclamations brought to their attention (R. 15,

97-28).

In the United States, migratory waterfowl, which in-

clude all species of wild geese, can be hunted only as per-

mitted by regulations issued pursuant to the Migratory

Bird Treaty Act, as amended, 16 U. S. C., Section 703, et

seq. (R. 32). In connection with the regulations issued

pursuant to said Migratory Bird Treaty Act, the Fish and

Wildlife Service of the Department of the Interior collects

all the data, information and facts and submits to the

Secretary of the Interior a proposed regulation to govern

the hunting of migratory waterfowl. After signing by

the Secretary transmits such regulations to the President

for approval. Changes are made in the regulations annu-

ally. The Fish and Wildlife Service also has the duty to

enforce all regulations or proclamations relating to migra-

tory waterfowl (R. 11-12).

In 1947, after notice and public procedure, pursuant to

Section 4 of the Administrative Procedure Act, 5 U. S. C.

Section 1003, Proclamation 2739, dated July 31, 1947, was

published in the Federal Register on August 2, 1947, 12

F. R. 5269, 5271-5273. Said Proclamation 2739 made it

legal to take geese in Alexander County from 12 noon on

November 4, 1947, up to and including December 3, 1947,

in the numbers and under the conditions prescribed in

—_

onal

Proclamation 2739, and made no special reference to Alex.

ander County, nor were the conditions of the hunting of

geese in any way different from those prescribed for the

rest of the State of Illinois (R. 12). (The applicable por.

tions of Presidential Proclamation 2739 are printed at the

end of the supporting brief as Appendix ‘‘A’’.)

Petitioners or their attorneys or agents participated in

the public procedure, hereinabove referred to, prior to

June 1, 1947, and the facts concerning the hunting of

geese in Alexander County were presented or attempted to

be presented at meetings called by the Fish and Wildlife

Service of the Department of the Interior in Chicago, Illi-

noiss San Francisco, California, and St Louis, Missouri

(R. 12).

Petitioners admit that Proclamation 2739 is legal and

valid, and by said Proclamation 2739, these petitioners

could use their premises for hunting any species of wild

geese in accordance with the regulations therein prescribed

for the 1947 hunting season (R. 12).

(For the information of this Court, in 1948, after notice

and public procedure, pursuant to Section 4 of the Admin-

istrative Procedure Act, 5 U. S. c., See. 1003, Presidential

Proclamation 2801, dated July 29, 1948, was published in

the Federal Register on July 31, 1948, 13 F. R. 4411, 4413-

4416. Said Proclamation 2801 established the migratory

waterfowl hunting regulations for the 1948 season, and

wild geese can be hunted under said Proclamation 2801 in

all of the State of Illinois except the closed area estab-

lished by Proclamation 2748, which is referred to in a

footnote in Proclamation 2801.)

On September 19, 1947, there was published in the Fed-

eral Register, 12 F. R. 6273-6274, a notice of the Department

of the Interior of intention to adopt amendments to the

=

regulations as last amended by Proclamation 2739, which

amendments would prohibit the hunting of geese in Alex-

ander County, Illinois, in the immediate vicinity of Horse

Shoe Lake. Such amendments were to take effect on No-

vember 3, 1947, and were to continue in effect thereafter

until further notice. Interested persons, in accordance

with such notice, were given an opportunity to participate

in preparing the regulations for issuance as set forth in

such notice by submitting their views, data, or arguments

in writing to Albert M. Day, Director, Fish and Wildlife

Service, Washington, D. C. (R. 12). (Said notice is printed

at the end of the supporting brief as Appendix ‘‘B’’.)

On September 19, 1947, petitioner, Robert L. Lansden,

ealled at the offices of the Fish and Wildlife Service in

Chicago, Illinois, and at that time was informed by W. E.

Crouch, Chief of the Game Management Division of the

Fish and Wildlife Service, of the content of said notice re-

ferred to in the preceeding paragraph. Said Robert L.

Lansden then and there requested of Crouch that peti-

tioners, Lansdens, and ali other persons in Alexander

County who might care to appear, be granted a hearing on

said proposed regulation (R. 13).

On September 23, 1947, at approximately 9:45 A. M.,

said Crouch by long-distance telephone informed peti-

tioners, David V. Lansden and Robert L. Lansden, that

said Albert M. Day, Director, Fish and Wildlife Service,

had granted the request made by Robert L. Lansden at

Chicago on September 19, 1947, and that said Day would

hold the hearing in Chicago at the offices of the Fish and

Wildlife Service, commencing at approximately 1:30 P. M.

on September 30, 1947 (R. 13).

On September 30, 1947, petitioners, David V. Lansden

and Robert L. Lansden, and petitioner, Regenstein, ap-

peared in person at said hearing, and Robert L. Lansden

=

appeared at said hearing as attorney for all » her peti.

tioners and as attorney for certain other persons, organi-

zations and municipal corporations. At said hearing the

views, data and arguments of the aforementioned persons

were submitted partially in writing and the remainder

orally, which oral statements were taken down by a short-

hand reporter and later transcribed, mimeographed and

mailed to some of the petitioners on October 16, 1947, and

were received by such petitioners on October 20, 1947

(R. 13).

On October 3, 1947, Proclamation 2748 was published in

the Federal Register, 12 F. R. 6521, 6523, and this is con-

ceded to be final agency action within the meaning of the

Administrative Procedure Act, 5 U.S. C., Sec. 1001 et seq.

(R. 6). Said Proclamation 2748 was approved and signed

by the President on October 1, 1947, the day after said

hearing was held in Chicago. The regulation, upon which

proclamation 2748 was based, was signed by the Secretary

of the Interior on September 25, 1947, which was five days

before said hearing was held in Chicago and which was

two days after said W. F. Crouch informed petitioners,

David V. Lansden and Robert L. Lansden, that said hear-

ing would be held in Chicago on September 30, 1947.

Only six days elapsed from the date of said notice of pro-

posed rule making on September 19, 1947, until the date

of September 25, 1947, when the Secretary of the Interior

signed the proposed regulation, and only eleven days

elapsed from the publication of notice to approval by the

President. (Said Proclamation 2748 is printed at the end

of the supporting brief as Appendix ‘‘C’’.)

Qn October 1, 1947, the same date on which the Presi-

dent signed Proclamation 2748, the Governor of the State

of Illinois signed a proclamation which attempted to estab-

lish a closed area identical and coterminous with the

closed area described in Proclamation 2748. The legal

descriptions in both of the proclamations are identical as

to words and figures. The proclamation by the Governor

was filed in the office of the Secretary of State of Illinois

on October 2, 1947. (Said Governor’s Proclamation is

printed at the end of the supporting brief as Appendix

“p)’’)

None of the petitioners ever received a notice of the

contemplated action by the Governor of the State of IIli-

nois, and no hearing was ever held in Connection with

such proclamation (R. 49, 51-52). :

On either September 27 or 29, 1947, a petition on behalf

of petitioners and other persons and organizations was

presented to the Secretary of the Interior requesting that

a total kill of 5,000 geese be permitted in Alexander

County, Illinois (R. 41-42, 54). The final action denying

this petition was not taken until subsequent to the date of

Proclamation 2748 (R. 46-47, 54). No petition to modify

Proclamation 2748 has ever been filed in the office of the

Secretary of the Interior (R. 42).

Numerous conferences were held in the Department of

the Interior relating to the hunting of geese in the area

surrounding Horse Shoe Lake, and such conferences were

held both prior and subsequent to the date of Proclama-

tion 2739, and at such conferences was discussed the data

received by the Department of the Interior from its agents

and from the Department of Conservation of the State of

Illinois (R. 32-38).

At the conferences held during the summer of 1947, it

was determined that there would be a simultaneous closure

of the area involved in this case by both Federal and

State Proclamations, and the mechanics of the simultane-

ous closure were not worked out until after the date of

Proclamation 2739 (R. 37).

et OR INLET

it.

At the hearing held in Chicago on September 30, 1947,

Albert M. Day, Director of the Fish and Wildlife Service,

presided only part of the time and was out of the room

the remainder of the time, and in his absence W. §£,

Crouch, Chief of the Game Management Division of the

Fish and Wildlife Service, presided. Day was absent

from the conference room where the hearing was held for

at least one hour. The hearing commenced about 1:30 in

the afternoon and ended about 4:30 (R. 50-51).

The Chief Counsel of the Fish and Wildlife Service

communicated with Albert M. Day prior to the hearing on

September 30, 1947, by telephone from Washington and

communicated with cther officials of Fish and Wildlife

Service who were at the hearing subsequent to the hearing

(R. 39, 45) and was informed of what had occurred at the

hearing. The Chief Counsel informed the Secretary of

what had transpired at Chicago because the Chief Counsel

was holding Proclamation 2748 as signed on September 25,

1947, by the Secretary of the Interior for transmittal to

the President on October 1, 1947, for his signature and

approval (R. 38-39, 45).

It was the opinion of the Chief Counsel of the Fish and

Wildlife Service that the adoption of Presidential Procla-

mation 2739 and 2748 was not governed by the Adminis-

trative Procedure Act, 5 U. S. C., See. 1001 et seq. (R.

43-44),

IL.

BASIS OF THIS COURT’S JURISDICTION.

The date of the judgment of the Court of Appeals for

the Seventh Circuit was May 5, 1948, and the date when

said judgment became final, on the denial of petitioners’

petition for rehearing was June 23, 1948. The date of this

eile

application for a writ of certiorari may be taken as the

date of the filing of the petition in the office of the Clerk

of this Court.

Between the date said judgment became final and the

date of this application for a writ of certiorari, former

Title 28 of the U. S. Code entitled “Judicial Code and

Judiciary” was revised, codified and enacted into law as

Title 28 of the U. S. Code entitled ‘‘Judiciary and Ju-

dicial Procedure,” which latter enactment took effect on

September 1, 1948. Such latter enactment does not affect

the jurisdiction of this Court in so far as this application

is concerned, nor have any of petitioners’ rights been lost

thereby [Sec. 2 (b) of the Act of June 25, 1948].

This Court has jurisdiction to review by certiorari the

judgment of the Court of Appeals for the Seventh Circuit

by reason of 28 U.S.C., Sec. 347 (old title), and 28 U.S. C.,

Sec. 1254 (new title). The jurisdiction of this Court is

invoked under such sections and under Rule 38 of the

Rules of the Supreme Court of the United States.

The time in which this application must be made is,

under the old title, three months (28 U. S. C. 350), and,

under the new title, ninety days [28 U. S. C. 2101 (c)].

Said Rule 38 sets forth what constitutes filing the petition

in time.

Ii.

QUESTIONS PRESENTED.

The questions presented as to Presidential Proclamation

2748 are as follows:

1. Whether any property rights of petitioners are in-

volved in this action.

posal cai

2. Whether petitioners’ rights to use their lands for

hunting and to conduct hunting club businesses, subject to

valid governmental regulation, can be protected by in.

junction.

3. Whether under the Migratory Bird Treaty Act, 16

U. S. C., Sec. 704, 4 permanently closed area can be estab-

lished.

4. Whether the standards required to be followed in the

adoption of regulations under the Migratory Bird Treaty

Act, 16 U. S. C. 704, can be applied to an area of only

20,000 acres.

5. Whether, in view of former regulation 4 under the

Migratory Bird Treaty Act, 16 U. S. C., Sec. 704, which

prohibits the hunting of migratory waterfowl on Migra.

tory Bird Conservation Act refuges or ‘‘any area of the

United States set aside under any other law, proclamation

or Executive order for use as a bird, game or other wild-

life reservation, breeding ground or refuge except so far

as may be permitted by the Secretary of the Interior

under existing law, or on any area adjacent to any such

refuge when such area is designated as a closed area

under the Migratory Bird Treaty Act,’’ a closed area can

be established on privately owned land not adjacent to a

federal refuge.

6. Whether a long continued and uniform construction

of a statute by a department of government charged with

its execution is entitled to great weight, and whether such

construction should be continued without change and not

broadened. (Regulation 4 in Proclamation 2739—Appen-

dix ‘‘A’’—Cf. Regulation 1.4 in Proclamation 2801—13

F. R. 4413.)

7. Whether any foreign affairs functions of the Federal

Government are involved in the execution of the Migra-

—

tory Bird Treaty Act, 16 U. S. C., Sec. 703 et seq. and the

regulations made pursuant thereto.

8. Whether the rule making provisions of Section 4 of

the Administrative Procedure Act, 5 U. S. C., Sec. 1003,

govern the adoption of regulations under the Migratory

Bird Treaty Act, 16 U.S. C., Sec. 704.

9. If the answer to the preceding question is in the

afirmative, whether the rule making provisions of Section

4 of the Administrative Act, 5 U. S. C., See. 1003, were

complied with as regards Presidential Proclamation 2748.

10. Whether, as regards Presidential Proclamation 2748,

petitioners are persons who have suffered legal wrong be-

cause of agency action or are adversely affected or ag-

grieved by such action within the meaning of Section 10

of the Administrative Procedure Act, 5 U. S. C., Sec. 1009,

and are, therefore, entitled to judicial review under said

Section 10 as provided therein. (It is conceded by peti-

tioners and respondents that Presidential Proclamation

2748 is final agency action within the meaning of said

Section 10 [R. 5].)

11. Whether Section 10 of the Administrative Procedure

Act, 5 U. S. C., Sec. 1009, has impliedly dispensed with the

necessity of any jurisdictional amount being involved in

judicial review proceedings thereunder.

12. Whether, irrespective of Section 10 of the Adminis-

trative Procedure Act, 5 U.S. C., Sec. 1009, petitioners are

entitled to judicial review of Presidential Proclamation

2748.

13. Whether, without having any evidence relating to

such issue, the District Court could find and determine

that Presidential Proclamation 2748 was reasonable and

not arbitrary.

AONE ys rr

tilliin

14. Whether, as regards Presidential Proclamation 2748

Section 8 of the Federal Register Act, 44 U.S. C., Sec. 308

was complied with.

15. Whether petitioners have been afforded due process

of law under Constitution of the United States as regards

Presidential Proclamation 2748.

The questions presented as to the Proclamation of the

Governor of the State of Illinois are as follows:

1. Whether, in view of the manner in which such procla-

mation was adopted, petitioners have been afforded due

process of law under the Constitution of the United States,

2. Whether, in view of the manner in which such procla-

mation was adopted, petitioners have been afforded due

process of law under the Constitution of the State of

Illinois.

IV.

REASONS

ERRORS RELIED ON FOR THE ALLOWANCE

OF THE WRIT.

1. The last paragraph of the opinion of the Court of

Appeals for the Seventh Circuit holds that no property

rights of petitioners are involved in this action. Such hold-

ing is in conflict with decisions of the Courts of Appeals

for the Fourth and Ninth Circuits.

Swan Island Club, Inc., v. Ansell, 51 F. 2d 337, C. C.

A. 4;

Cerritos Gun Club v. Hall, 96 F. 2d 620, C. C. A. 9.

2. The last paragraph of the opinion of the Court of

Appeals for the Seventh Circuit, by holding that no prop-

erty rights of petitioners are involved in this action, has

in effect decided that petitioners’ rights to use their lands

ae ee

for hunting and to conduct hunting club businesses, subject

to valid governmental regulation, are not property rights.

Such holding conflicts with the decisions of the Supreme

Court of Illinois and of this Court.

Schulte v. Warren, 218 Ill. 108;

Packard v. Banton, 264 U.S. 140, 68 L. ed. 596.

3. Without discussion, the Court of Appeals for the Sev-

enth Circuit decided that Presidential Proclamation 2748

establishing the closed area was a proper exercise of

administrative discretion vested in the Secretary of the

Interior. Whether, under the Migratory Bird Treaty Act,

16 U. S. C., Sec. 704, any permanently closed area can be

established or whether the standards required by said act

to be followed can be applied to an area of only 20,000

acres, are both important federal questions, the decision of

which will determine some of the limits of the power

granted to the Secretary of the Interior. Such questions

have never been passed upon by this Court but should be,

and the only occasion this Court has ever had to construe

the Migratory Bird Treaty Act was in the case upholding

its constitutionality, Missouri v. Holland, 252 U. S. 416,

64 L. ed. 641, decided in 1920. This phase of the present

case is unique and novel.

4. Presented to the Court of Appeals for the Seventh

Circuit but not decided nor discussed by it in its opinion

was the question whether, under the regulation relating

to closed areas, a closed area could be established on

privately owned land not adjacent to a Federal refuge.

For over ten years prior to Presidential Proclamation

2748, such regulation had uniformly contained the state-

ment, in substance, that a closed area could be established

on privately owned land only if such land were adjacent

to a Federal refuge. A decision as to whether Presidential

Proclamation 2748 was authorized by such regulation was

2 NR

alll

not specifically decided by the Court of Appeals for the

Seventh Circuit but was impliedly decided by the Courts

holding that Presidential Proclamation 2748 was a proper

exercise of administrative discretion.

Whether the Secretary of the Interior is bound by his

long continued and uniform construction of the Migratory

Bird Treaty Act in so far as such construction relates to

closed areas is a Federal question, the decision of which

will define the limits of the power granted to the Secretary

of the Interior under the Migratory Bird Treaty Act, 16

U.S. C., See. 704.

5. The Court of Appeals for the Seventh Circuit did not

decide, but the District Court seemed to feel that the

regulation of migratory waterfowl involved some foreign

affairs functions of the United States. Whether such

foreign affairs functions are legally involved is of con-

siderable importance on the question of judicial review

of Presidential Proclamation 2748. Cf. C. & S. Air Lines

v. Waterman S. S. Corp., ... U.S. ..., 92 L. Ed. 367.

6. So far as petitioners have been able to ascertain, this

Court has never been called upon to construe any portions

of Sections 4 or 10 of the Administrative Procedure Act,

5 U. S. C., Sees. 1003 and 1009. This statute is considered

by many Federal practitioners to be one of the most im-

portant Congressional enactments in recent years, and the

interpretation to be given to such statute will vitally affect

the relations of all citizens of the United States to their

government. The Court of Appeals for the Seventh Cir-

cuit decided that none of the provisions of the Administra-

tive Procedure Act had been violated in the adoption of

Presidential Proclamation 2748, yet the undisputed facts

in this case show that the Secretary of the Interior acted

before the hearing granted petitioners was held and with-

sien ais

out consideration of petitionsite’ views, arguments and

data on the proposed closed area. The opinion of the

Court of Appeals for the Seventh Circuit is silent on the

question of whether petitioners are entitled to judicial re-

view under the Administrative Procedure Act, but peti-

tioners, Stenzels, should not be parties to this action

unless Section 10 of said Act has impliedly dispensed with

the necessity of any jurisdictional amount being involved

in judicial review proceedings under said ‘section.

- The testimony of the chief counsel of the Fish and Wild-

life Service (R. 43-44) categorically discloses that such

agency is trying to escape the requirements of the Ad-

ministrative Procedure Act.

This Court should decide all questions presented in this

case that relate to the Administrative Procedure Act and

settle them to prevent confusion and conflict in the lower

Federal courts.

7. Another important question, which should be decided

by this Court but which was not decided by the lower

courts was whether, irrespective of Section 10 of the Ad-

ministrative Procedure Act, 5 U. S. C., Sec. 1009, peti-

tioners are entitled to judicial review of Presidential

Proclamation 2748. Before this Court is, therefore, the

question of whether Section 10 is the exclusive basis of

judicial review of agency action other than that spe-

cifically provided for in specific statutes.

8. Both the District Court and the Court of Appes!s

for the Seventh Circuit found and decided that Presidential

Proclamation 2748 was reasonable. No evidence was intro-

duced at the hearing on the motion for preliminary injunc-

tion on such issue, and a finding and holding without evi-

dence in the record to determine such vital question has

been disapproved by this Court in Kennedy v. Silas Mason

oo me eR 8

— 18 —

.

Co., 334 U. S. ..., 92 L. Ed. 989; Price v. Johnston, 334

U. S. ..., 92 L. Ed. 993.

9. Section 8 of the Federal Register Act, 44 U. S. C,

Sec. 308, has never been construed by this Court, and

whether there was compliance with said section as regards

Presidential Proclamation 2748 was not determined by

the District Court or the Court of Appeals for the Seventh

Cireuit. This Court should decide whether said section

really means anything or whether said section is of little

importance to the administrative process.

10. The essentials of due process of law under the Con-

stitutions of the United States and the State of Illinois are

notice and an opportunity to be heard. Both the District

Court and the Court of Appeals for the Seventh Circuit

have impliedly held, without discussion, that petitioners

were not denied due process of law as regards both procla-

mations involved in this case, and such implied holdings

conflict with decisions of this Court and the Supreme Court

of Illinois. Morgan v. U. 8., 298 U_ S. 468, 80 L. Ed. 1288;

Coe v. Armour Fertilizer Works, 237 U. S. 413, 59 L. Ed.

1027; Grattan v. Ahlberg Bearing Co., 373 Ill. 455; Benton

v. Marr, 364 Ill. 628.

The foregoing reasons cover all of the reasons appearing

in paragraph 5 (b) of Rule 38 of this Court, any one of

which could well be sufficient for this Court to grant the

prayer of this petition.

PRAYER.

Your petitioners therefore respectfully pray that a writ

of certiorari be issued out of this Honorable Court, com-

manding the United States Court of Appeals for the

Seventh Circuit to certify and send to this Court a eom-

a ee -

—

plete transcript of the record and all proceedings in said

Court of Appeals in this cause entitled ‘‘No. 9553, David

V. Lansden et al., Plaintiffs-Appellants, v. William W.

Hart, as United States Attorney for the Eastern District

of Illinois et al., Defendants-Appellees,’’ to the end that

this cause may be reviewed by this Honorable Court, and

that said judgment of the Court of Appeals be reversed.

and that your petitioners may have such other and further

relief in the premises as to this Honorable Court may seem

meet and proper.

DAVID V. LANSDEN, ROBERT L. LANSDEN,

216 Seventh Street, 216 Seventh Street,

Cairo, Illinois, Cairo, Illinois,

Pro Se. Pro Se.

JOHN F. DONELAN, ROBERT L. LANSDEN,

Munsey Building, 216 Seventh Street,

Washington, D. C., Cairo, Illinois,

Counsel for Petitioners not appearing Pro Se.

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1948.

DAVID V. LANSDEN et al., Petitioners,

VS.

WILLIAM W. HART, as United States Attorney for the

Eastern District of Illinois, et al., Respondents,

BRIEF IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI.

I.

OPINIONS BELOW.

The opinion of the District Court has not been officially

reported, but the oral opinion of the District Court an-

nounced at the time of the denial of the motion for pre-

liminary injunction is found at R. 55-59.

The opinion of the United States Court of Appeals for

the Seventh Circuit is reported in 168 F. 2d 409-412.

eR ELLE OTOL LOL

—

II.

GROUNDS UPON WHICH JURISDICTION

IS INVOKED.

A statement of the grounds on which the jurisdiction of

this Court is invoked appears in the petition for writ of

certiorari under the heading ‘‘Basis of This Court’s Juris.

diction,’’ and is, therefore, not repeated here.

Til.

STATEMENT OF THE CASE.

A statement of the case containing all that is deemed

material to the consideration of the questions presented

with appropriate page references to the record appears in

the petition for writ of certiorari under the heading ‘‘State-

ment of the Matter Involved,’’ to which reference is hereby

respectfully made.

—_ ae

IV.

SPECIFICATION OF ERRORS.

The Court of Appeals for the Seventh Circuit erred in

each of the following respects:

1. In affirming the judgment of the District Court.

2. In holding that no property rights of petitioners are

involved in this action.

3. In ruling that a permanently closed area can be estab-

lished under the Migratory Bird Treaty Act, 16 U. S. C.,

Sec. 704.

4. In holding, in effect, that the standards required to

be followed in the adoption of regulations under the Migra-

tory Bird Treaty Act, 16 U. S. C., Sec. 704, can be applied

to an area of only 20,000 acres.

5. In holding that a closed area can be established on

privately owned land not adjacent to a federal refuge.

6. In refusing to decide whether a long continued and

uniform construction of a statute by a department of gov-

ernment charged with its execution is binding on such

agency.

7. In failing to decide whether foreign affairs functions

were or were not involved in the execution of the Migra-

tory Bird Treaty Act, 16 U. S. C., Sec. 703 et seq., and the

regulations made pursuant thereto.

8. In deciding that the rule making provisions of Sec-

tion 4 of the Administrative Procedure Act, 5 U. S. C.,

See. 1103, were complied with.

9. In refusing to hold that petitioners are persons who

have suffered legal wrong because of agency action or are

ere

adversely affected or aggrieved by such action within the

meaning of Section 10 of the Administrative Procedure

Act, 5 U. S. C., Sec. 1009.

10. In refusing to hold that petitioners are entitled to

judicial review under said Section 10 of the Administra.

tive Procedure Act.

11. In failing to decide whether Section 10 of the Ad-

ministrative Procedure Act has dispensed with the neces-

sity of any jurisdictional amount being involved in judi-

cial review proceedings thereunder.

12. In failing to decide whether petitioners are entitled

to judicial review of Presidential Proclamation 2748, irre-

spective of said Section 10 of the Administrative Pro.

cedure Act.

13. In deciding the ‘‘reasonableness’’ of Presidential

Proclamation 2748 without there having been any evidence

or facts on the subject presented to the District Court.

14. In ignoring whether Section 8 of the Federal Regis-

ter Act, 44 U.S. C., Sec. 308, was complied with as regards

Presidential Proclamation 2748.

15. In ignoring the question of whether petitioners were

afforded due process of law under the Constitution of the

United States as regards Presidential Proclamation 2748.

16. In not deciding whether petitioners have been af-

forded due process of law under the Constitution of the

United States or under the Constitution of the State of

Tilinois in the adoption of the Proclamation of the Gov-

ernor of the State of Illinois.

Om

V.

ARGUMENT.

At the outset of this argument, petitioners state that

it is not their intention, in any way, to argue the merits of

their case, but this argument will be confined to an argu-

ment on the reasons for granting the petition for writ of

certiorari.

The opinion of the Court of Appeals for the Seventh

Circuit is silent on many of the questions presented in the

petition, but those questions have been in the case from

the day it was filed, and the decision of some of those

questions will not only determine this case but will estab-

lish binding precedents on sections of three statutes,

to-wit: the Migratory Bird Treaty Act, Administrative

Procedure Act and Federal Register Act, which have never

heretofore been construed by this Court.

POINT I.

The last paragraph of the opinion of the Court of Ap-

peals for the Seventh Circuit holds that no property

rights of petitioners are involved in this action.

In Cerritos Gun Club v. Hall, 96 F. 2d 620, C. C. A. 9,

a case in which the validity of regulations issued pur-

suant to the Migratory Bird Treaty Act, 16 U.S. C., See.

703 et seq., was involved, the court held that the plain-

tiffs, whose situation was directly analogous to that of the

petitioners in the instant case, did have property rights.

In Swan Island Club, Inc., v. Ansell, 51 F. 2d 337, C. C. A.

4, a case which was cited in the Cerritos Gun Club case,

the court granted an injunction to a duck club against

repeated and threatened trespasses of poachers because

— 26—

such repeated trespasses would virtually destroy property

values.

In Schulte v. Warren, 218 Ill. 108, plaintiff owned a

tract of land which was subject to overflow, the only value

of which consisted of the right and privilege of hunting

thereon, and upon which plaintiff had expended money to

attract ducks. The court pointed out there was no dis-

tinction between the right to hunt and the right to fish,

and the court held that such rights were property rights

which would be protected by injunction.

In Packard v. Banton, 264 U. S. 140, 145, 68 L. Ed. 596,

608, this Court held that the right to conduct a business,

which can only be carried on by government sufferance

or permission, is a property right which will be protected

by a court of equity.

The authorities cited by the Court of Appeals for the

Seventh Circuit on the proposition that no property rights

of petitioners are involved in this action are Magner v.

People, 97 Ill. 320; American Express Co. v. People, 133

Til. 649; Geer v. Connecticut, 161 U.S. 519, 40 L. Ed. 793.

In Gratz v. McKee, 270 Fed. 713, at page 720 (affirmed

by this Court, 260 U. S. 127, 67 L. Ed. 167), the rationale

of all three of those cases was effectively analyzed and

distinguished. If the rationale of the Geer case had any

vitality subsequent to the Gratz case, this Court at its last

term in two cases eliminated whatever vitality remained.

Takahashi v. Fish and Game Commission, ... U.S. ...,

92 L. Ed. 1096; Toomer v. Witsell, ... U.S. ..., 92 L. Ed.

1131.

If the opinion of the Court of Appeals for the Seventh

Circuit remains unchanged, Illinois landowners and hunt-

ing club operators cannot obtain injunctive relief against

nl os

migratory waterfowl regulations, but landowners and hunt-

ing club operators in California and Virginia can.

Duck and goose hunters, as such, have previously been

silenced in Brandenburg v. Doyle, 12 F. Supp. 342. Con-

servation organizations are probably likewise silenced,

but not every person having a legitimate interest in the

regulation of the hunting of migratory waterfowl should

be silenced by the decisions of the Federal Courts.

POINT IL.

An examination of the Code of Federal Regulations and

the Federal Register has disclosed that the closed area

established by Presidential Proclamation 2748 is the first

such closed area in the United States which is not adjacent

to a Federal refuge.

The regulation relating to closed areas in effect in 1947,

and which had been substantially the same for more than

ten years, limits the establishment of closed area to lands

adjacent to Federal refuges. Proclamation 2739 (1947),

Reg. 4, 12 F. R. 5269 et seq.; Proclamation 2616 (1944),

' Reg. 4, 9 F. R. 9873 et seq.; Proclamation 2345 (1939),

Reg. 4, 4 F. R. 3621 et seq.; Proclamation 2245 (1937),

Reg. 4, 2 F. R. 1355 et seq.

In Proclamation 2801, made in 1948 (13 F. R. 4413, Reg.

14), this regulation was changed by eliminating the re-

quirement that the closed area be adjacent to a Federal

refuge and now indicates that any area in the United States

may be designated as a closed area under the Migratory

Bird Treaty Act.

This Court has not had occasion to construe the Migra-

tory Bird Treaty Act since Missouri v. Holland, 252 U. S.

416, 64 L. Ed. 641, decided in 1920, which case upheld its

ov ee ene ere a,

APRA ETE TREE

cnn BB cme

constitutionality. Directly presented in the present case

for determination are the following important Federal

questions under the Migratory Bird Treaty Act:

a. Can a closed area be established under such an Act?

b. Can the standards required to be followed by said Act

be applied to an area of only 20,000 acres?

c. Can a closed area be established on privately owned

land not adjacent to’ Federal refuge?

d. Is a long continued and uniform construction of a

statute by the department of government charged with its

execution virtually binding on said department? Federal

Trade Commission v. Bunte Brothers, 312 U. S. 349, 85 L.

Ed. 881.

The subsequent change in former regulation 4, now found

in Proclamation 2801, regulation 1.4, is a clue to the atti-

ture of the Department of the Interior as to the validity of

Presidential Proclamation 2748. By changing such regula-

tion, has the Secretary of the Interior admitted that former

regulation 4 did not permit the closure of the area in-

volved in this case, or does the change in former regula-

_ tion 4 constitute an attempt on the part of the Secretary of

the Interior to assert a power he does not have and has

never previously asserted under the Migratory Bird Treaty

Act? Federal Trade Commission v. Bunte Brothers, 312

U. S. 349, 85 L. Ed. 881.

POINT ITI.

If foreign affairs functions of the United States are in-

volved in the regulation of migratory waterfowl, since the

Migratory Bird Treaty Act was passed pursuant to treaties

with Great Britain and the United Mexican States, this

cies

Court should determine the extent of judicial review when

foreign affairs functions are involved. Cf. C. & 8. Air Lines

y. Waterman 8. 8. Corp., ... U.S. ..., 92 L. Ed. 367.

POINT IV.

The Administrative Procedure Act, 5 U. S. C., Sec. 1001

et seq., is considered by many Federal practitioners to be

one of the most important Congressional enactments in

recent years. The interpretation to be given to such statute

will vitally effect the relations of all citizens of the United

States to their government.

This important piece of legislation was sponsored by the

American Bar Association, and the American Bar Asso-

ciation Journal has contained scores of articles on this

statute. This legislation was bitterly opposed by some

agencies of the Federal Government. (Nathanson: Some

Comments on the Administrative Procedure Act, 41 II.

L. R. 368 [1946]). Certain agencies, one of which appears

to be the Fish and Wildlife Service, maintain that their

actions are not controlled by the Administrative Procedure

Act (R. 43-44).

Some consider the Administrative Procedure Act to be a

mere codification of prior laws, and others consider it to

be a milestone in the control of the exercise of govern-

mental power.

This Court has presented to it in this case certain vital

and important questions which have arisen under the

Administrative Procedure Act and which, if decided, will

clarify some of the most important provisions thereof. A

decision by this Court construing the Administrative Pro-

cedure Act will be equally helpful to private citizens and

governmental agencies.

Sk ee oe nce ee gy

sil as

POINT V.

Under the stipulation entered into on the date when the

motion for preliminary injunction was argued (R. 28-29),

no evidence was offered by petitioners or respondents on

the reasonableness of Presidential Proclamation 2748 sg

far as the scientific, biological and economic facts were

concerned. On the question of reasonableness only legal

questions were presented. Both the District Court and the

Court of Appeals for the Seventh Circuit found and de.

cided that Presidential Proclamation 2748 was reasonable

and did not limit such findings to legal determinations as

opposed to factual determinations.

This Court has in two recent cases disapproved factual

determinations by lower courts which were decisive of

vital rights where the crucial facts were not developed

or where there was an indefinite factual situation. Kennedy

v. Silas Mason Co., 334 U.S. ..., 92 L. Ed. 989; Price v.

Johnston, 334 U. S. ..., 92 L. Ed. 993.

This Court’s power of supervision should be exercised

to correct the broadening of the issue of ‘‘reasonableness”’

by the lower courts in this case in view of the limiting

stipulation. ‘

POINT VI.

This Court has never passed upon Section 8 of the Fed-

eral Register Act, 44 U. S. C., Sec. 308, which requires

publication of notice in the Federal Register of proposed

administrative action. Said section further provides that

not less than fifteen days shall elapse from the publication

of the notice until the opportunity to be heard terminates

unless a shorter period is reasonable.

In this case no time was set for the termination of the

opportunity to be heard (see Appendix ‘‘B’’).

It is significant to note that since petitioners filed their

action in November, 1947, the Secretary of the Interior has

isin Dabs

been careful to comply with Section 8 of the Federal Regis-

ter Act by stating a definite time for termination of the

opportunity to be heard. See 13 F. R71191, March 5, 1948,

Notice of Proposed Rule Making.

Noncompliance with Section 8 of the Federal Register

Act is a violation of the Administrative Procedure Act,

and the two statutes should be construed together.

POINT VIL.

Notice of the proposed Presidential Proclamation 2748

was given by publication in the Federal Register (see

Appendix ‘‘B’’). The hearing granted to petitioners on

September 30, 1947, was held five days subsequent to Sep-

tember 25, 1947, the date when the Secretary of the In-

terior signed the Proclamation. Said notice also provided

that Albert M. Day, Director of the Fish and Wildlife

Service, was the person to receive information submitted

in connection with the proposed closure order. Day heard

only part of the evidence submitted by petitioners, and the

transcript of the evidence was not written up until after

the President signed Proclamation 2748 (R. 50, 54, 13).

It is submitted that under Morgan v. U. &., 298 U. S. 468,

80 L. Ed. 1288; and Coe v. Armour Fertilizer Works, 237

U. 8. 413, 59 L. Ed. 1027, these petitioners have not been

afforded due process of law under the Fifth Amendment

to the Constitution of the United States. Hearings before

administrative agencies are not supposed to confirm previ-

ous administrative action or to place the stamp of legality

on a prejudged situation.

Petitioners were given no notice or opportunity to be

heard concerning the Proclamation of the Governor of the

State of Illinois (R. 49, 51, 52). Under the two above cited

cases of this Court, petitioners have been denied due proc-

ess of law under the Fourteenth Amendment to the Con-

stitution of the United States. By reason of decisions of

— ,

the Supreme Court of Illinois, Grattan v. Ahlberg

Co., 373 Til. 455; Benton v. Marr, 364 Ill. 628, petitioners

have not been afforded due process of law under Article

II, Section 2, of the Constitution of the State of Illinois,

The only portion of the opinion of the Court of Appeals

for the Seventh Circuit which mentions constitutionality

holds that Section 3-D of the Game Code of Illinois, I),

Rev. Stat. 1947, Chap. 61, Sec. 137, did not violate any pro-

visions of the United States and Illinois Constitutions. The

question of the constitutionality of said section was not

before the Court of Appeals or the lower court; otherwise

a three-judge court would have been mandatory at the time

of the hearing on the motion for preliminary injunction.

This Court has often commented on the requirements of

‘*procedural due process,’’ and such questions are spe-

cifically before it in this case.

CONCLUSION.

The judgments of the Court of Appeals for the Seventh

Cireuit and the District Court involve several important

and new questions never before decided by this Court and

further involve the application of principles heretofore

established by this Court. Such determinations and ques-

tions merit the consideration of this Court.

Respectfully submitted,

DAVID V. LANSDEN, ROBERT L. LANSDEN,

216 Seventh Street, 216 Seventh Street,

Cairo, Illinois, Cairo, Illinois,

Pro Se. Pro Se.

JOHN F. DONELAN, ROBERT L. LANSDEN,

Munsey Building, 216 Seventh Street,

Washington, D. C., Cairo, Illinois,

Counsel for Petitioners Not Appearing Pro Se.

—- $3 —-

APPENDIX ‘‘A.’’

Federal Register Volume 12 No. 151, August 2, 1947,

Pages 5269, 5271-3

PROCLAMATION 2739

Amendments of Regulations Relating to

Migratory Birds and Game Mammals

By the President of the United States of America

A Proclamation

Whereas the Acting Secretary of the Interior has

adopted, after notice and public procedure pursuant to sec-

tion 4 of the Administrative Procedure Act of June 11,

1946 (Pub. Law No. 404—79th Cong.), and has submitted

to me for approval the following amendments of the regu-

lations approved by Proclamation No. 2616 of July 27,

1944, as amended, relating to migratory birds and game

mammals included in the terms of the Convention between

the United States and Great Britain for the protection of

migratory birds concluded August 16, 1916, and the Con-

vention between the United States and the United Mexican

States for the protection of migratory birds and certain

game mammals concluded February 7, 1936:

Amendments of Migratory Bird Treaty Act

Regulations Adopted by the Secretary

of the Interior

By virtue of and pursuant to the Migratory Bird Treaty

Act of July 3, 1918 (40 Stat. 755), and Reorganization Plan

II (53 Stat. 1431), and in accordance with the provisions

of the Administrative Procedure Act of June 11, 1946 (Pub.

Taw No. 404—79th Cong.), I, Osear lL. Chapman, Acting

Secretary of the Interior, having due regard to the zones

encom

saan esas

of temperature and to the distribution, abundance, eeo-

nomic value, breeding habits, and times and lines of migra-

tory flight of migratory birds included in the terms of the

Convention between the United States and Great Britain

for the protection of migratory birds, concluded August

16, 1916, and the Convention between the United States

and the United Mexican States for the protection of migra-

tory birds and game mammals, concluded February 7, 1936,

have determined when, to what extent, and by what means

it is compatible with the terms of the said Act and con-

ventions to allow the hunting, taking, capture, killing,

possession, sale, purchase, shipment, transportation, car-

riage, exportation and importation of such birds and parts

thereof and their nests and eggs, and in accordance with

such determinations, do hereby amend as follows the regu-

lations approved by Proclamation No. 2616 of July 27, 1944,

as last amended by Proclamation No. 2699 of August 8,

1946, and as so amended do hereby adopt such regulations

as suitable regulations, permitting and governing the hunt-

ing, taking. capture, killing, possession, sale, purchase, ship-

ment, transportation, carriage, exportation, and importa-

tion of such migratory birds and parts, nests, and eggs

thereof:

Regulation 4, ‘‘Open Seasons on and Possession of (er-

tain Migratory Game Birds,’’ is amended to read as

follows:

Nothing herein shall be deemed to permit the taking of

migratory birds on any reservation or sanctuary estab-

lished under the Migratory Bird Conservation Act of Feb-

ruary 18, 1929 (45 Stat. 1222), or on any area of the United

States set aside under any other law, proclamation, or

Executive order for use as a bird, game or other wildlife

reservation, breeding ground, or refuge except so far as

— ee

may be permitted by the Secretary of the Interior under

existing law. or on any area adjacent to any such refuge

when such area is designated as a closed area under the

Migratory Bird Treaty Act.

Waterfowl and Coot. The open season on waterfowl and

-eoot (except wood ducks in Arizona, Colorado, Kansas,

Massachusetts, Nebraska. Nevada, New Jersey, North Da-

kota, Utah, West Virginia and Wyoming; snow geese in

Beaverhead, Gallatin, and Madison Counties in Montana,

in Colorado, Idaho and Wyoming, and snow geese and

brant iv States bordering on the Atlantic Ocean; Ross’

geese; and swans) in the several States, Alaska and Puerto

Rico shall be as follows, both dates inclusive:

* * * . * * *

Illinois, Missouri and West Virginia, November 4 to De-

eember 3.

Regulation 5, ‘‘Daily Bag and Possession Limits on

Certain Migratory Game Birds,’’ is amended to read as

follows:

A person may take in any one day during the open sea-

sons prescribed therefor in regulation 4 not to exceed the

following numbers of migratory game birds, » Lich num-

bers shall include all birds taken by any othe ~erson who

for hire accompanies or assists him in taking such birds.

When so taken, such birds may be possessed in the num-

ber hereinafter specified, except that no person on the

opening day of the season may possess any migratory game

birds in excess of the daily limits herein prescribed.

Geese and brant (except snow geese in Beaverhead,

Gallatin and Madison Counties in Montana, in Colorado,

Idaho, and Wyoming, and snow geese and brant in States

a

bordering on the Atlantic Ocean; and Ross’ geese any-

where), as follows:

In Washington, Oregon and California 5, including in

such limit any combination not exceeding 2 of Canada

geese (including Hutchins or cackling geese), white-

fronted geese and brant.

In Alaska, Puerto Rico, Idaho, Utah, Arizona and Ne-

vada 4, including in such limit not more than 2 Canada

geese (including Hutchins or cackling geese), or 2 white-

fronted geese or 1 of each.

Elsewhere than in the above States 4, including in such

limit either 1 Canada goose (including Hutchins or eack-

ling geese) or 1 white-fronted goose.

Any person may possess not more than the above bag

limits of geese or brant.

In view of the fact that the hunting season on a number

of migratory birds normally opens on September 1, it has

been determined that these amendments shall become effec-

tive August 31, 1947.

In Witness Whereof, I have hereunto subscribed my

name and caused the seal of the Department of the Interior

to be fixed, this 29th day of July, 1947.

Oscar L. Chapman,

(Seal) Acting Secretary of the Interior.

And Whereas upon consideration it appears that ap-

proval of the foregoing amendments will effectuate the

purposes of the aforesaid Migratory Bird Treaty Act:

Now, Therefore, I, Harry S. Truman, President of the

United States of America, under and by virtue of the au-

thority vested in me by section 3 of the said Migratory

—

Bird Treaty Act of July 3, 1918, do hereby approve and

proclaim the foregoing amendments.

In Witness Whereof, I have hereunto set my hand and

caused the seal of the United States of America to be

affixed,

Done at the City of Washington this 31st day of

(Seal) July in the year of our Lord nineteen hundred and

forty-seven, and of the Independence of the United

States of America the one hundred and seventy-

second.

Harry S. Truman.

By the President:

G. C. Marshall,

Secretary of State.

(F. R. Doc. 47-7309; Filed, July 31, 1947; 4:26 p. m.)

— wor

APPENDIX ‘‘B.’’

Federal Register Volume 12 No. 184, September 19, 1947,

Pages 6273-4

Proposed Rule Making

Department of the Interior

Office of the Secretary

(50 CFR, Part 1)

Protection of Migratory Birds and

Certain Game Mammals

Notice of Intention to Adopt Amendments

Pursuant to section 4 (a) of the Administrative Proce-

dure Act, approved June 11, 1946 (Public Law 404, 79th

Cong.), and the authority contained in section 3 of the

Migratory Bird Treaty Act of July 3, 1918 (40 Stat. 755,

16 U. S. C. 704), as amended, notice is hereby given that

the Secretary of the Interior intends to take the following

action:

Adopt an amendment to the regulations for the protec-

tion of migratory birds and certain game mammals as last

amended and approved by Proclamation No. 2739, July 1,

1947 (12 F. R. 5269), which will prohibit the hunting, tak-

ing, capture, killing and possession of geese in Alexander

County, Illinois, in the immediate vicinity of Horseshoe

Lake.

The foregoing regulations are to be effective beginning

November 3, 1947, and to continue in effect thereafter until

further notice.

Interested persons are hereby given an opportunity to

participate in preparing the regulations for issuance as set

ay

— $9 —

forth by submitting their views, data, or arguments in

writing to Albert M. Day, Director, Fish and Wildlife Serv-

ice, Washington, D. C.

Oscar L. Chapman,

Under Secretary of the Interior.

September 16, 1947.

(F. R. Doe. 47-8529; Filed Sept. 18, 1947; 8:47 a. m.) :

po om

APPENDIX ‘‘C.’’

Federal Register Volume 12 No. 194, October 3, 1947,

Pages 6521, 6523

PROCLAMATION 2748

Closed Area Under the Migratory Bird

Treaty Act, Illinois

By the President of the United States of America

A Proclamation

Whereas the Secretary of the Interior has submitted to

me for approval the following regulation adopted by him

after notice and public procedure pursuant to section 4 of

the Administrative Procedure Act of June 11, 1946 (60

Stat. 238), under authority of the Migratory Bird Treaty

Act of July 3, 1918 (40 Stat. 755, 16 U. S. C. 704), and Re-

organization Plan No. IT (53 Stat. 1431):

Regulation Designating as Closed Area Certain Lands

and Waters in Alexander County, Illinois

By virtue of and pursuant to the authority contained in

section 3 of the Migratory Bird Treaty Act of July 3, 1918

(40 Stat. 755, 16 U. S. C. 704), Reorganization Plan No. II

(53 Stat. 1431), and in accordance with the provisions of

section 4 of the Administrative Procedure Act of June 11,

1946 (60 Stat. 238), i, J. A. Krug, Secretary of the Interior,

having due regard to the zones of temperature and to the

distribution, abundance, economic value, breeding habits,

and times and lines of flight of the migratory birds herein

referred to and included in the terms of the conventions

between the United States and Great Britain for the pro-

tection of migratory birds, concluded August 16, 1916, and

between the United States and the United Mexican States

for the protection of migratory birds and game mammals,

concluded February 7, 1936, and in consideration of the

obligation imposed by said treaties of insuring the preser-

vation of said migratory birds, do hereby designate as

attention

ee in

closed area, effective November 3, 1947, in or on which

pursuing, hunting, taking, capturing, or killing of all spe-

cies of wild geese, or attempting to take, capture, or kill

such wild geese is not permitted, all that area of land and

water situate in Alexander County, Illinois, within the fol-

lowing described exterior boundary:

(Description omitted.)

In Witness Whereof, I have hereunto subscribed my

name and caused the seal of the Department of the Interior

to be affixed this 25th day of September, 1947.

J. A. Krug,

(Seal) Secretary of the Interior.

And Whereas upon consideration it appears that the

foregoing regulation will tend to effectuate the purposes

of the aforesaid Migratory Bird Treaty Act of July 3,

1918:

Now, Therefore, I, Harry S. Truman, President of the

United States of America, under and by virtue of the au-

thority vested in me by the aforesaid Migratory Bird

Treaty Act of July 3, 1918, do hereby approve and proclaim

the foregoing regulation of the Secretary of the Interior.

In Witness Whereof I have hereunto set my hand and

caused the seal of the United States of America to be

affixed.

Done at the City of Washington this 1st day of

(Seal) October in the year of our Lord nineteen hundred

and forty-seven, and of the Independence of the

United States of America the one hundred and

seventy-second.

Harry S. Truman.

By the President:

Robert A. Lovett,

Acting Secretary of State.

(F. R. Doc. 47-9006; Filed Oct. 2, 1947; 12:12 p. m.)

ee

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APPENDIX ‘‘D.’’

State of [llinois

Executive Department

PROCLAMATION.

Whereas, the conservation of all our natural resources,

and the protection and restoration of those which are re-

newable become increasingly important to the citizens of

Illinois with each passing year, and

Whereas, the wild geese of Illinois are in danger of ex-

termination, and

Whereas, the wild geese are highly valuable for their

contribution to the beauties of nature and the enjoyment

of outdoor life, and

Whereas, the destruction of wild geese occurs mainly

in the vicinity of Horseshoe Lake in Alexander County,

Illinois, and

Whereas, the continuation of the annual migration of

this bird through Illinois is dependent upon the protection

of wild geese in part of Alexander County, and

Whereas, the State of Illinois is obligated by law to

insure the safety and preservation of migratory waterfowl,

now, therefore, I, Dwight H. Green, Governor of the State

of Illinois, do hereby designate as a closed area, in or on

which pursuing, hunting, taking, capturing or killing of

all species of wild geese, or attempting to take, capture

or kill suid wild geese is not permitted, all that area of

land and water situated in Alexander County, Illinois,

within the following described exterior boundary:

(Description omitted.)

aie sin

In Witness Whereof, I have hereunto set my hand and

caused the Great Seal of the State of Illinois to be affixed.

Done at the Capitol in the City of Springfield, this first

day of October, in the Year of Our Lord one thousand nine

hundred and forty-seven, and of the State of Illinois the

one hundred and twenty-ninth.

(Seal of the State Dwight H. Green,

of Illinois) Governor.

By the Governor.

‘*Filed

Executive Department Edward J. Barrett

Oct 2—1947 Secretary of State

Edward J. Barrett

Secretary of State’’

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