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State Wildlife Laws Handbook: Chapter 2 Overview of Wildlife Law

Ruth S. Musgrave and Mary Anne Stein


Musgrave, Ruth S. & Mary Anne Stein, State Wildlife Laws Handbook 6-13 (1993).
Publish Date:
1993
Place of Publication: Government Institutes Inc., Rockville, Maryland
ISBN #: 0-86587-357-7
Printable Version

State Wildlife Laws Handbook: Chapter 2 Overview of Wildlife Law

 

Chapter 2

OVERVIEW OF WILDLIFE LAW

For most Americans who do not hunt, the experience of encountering wildlife in a natural setting does not immediately provoke thoughts about laws that govern these ostensibly "free" animals. One might assume that wildlife answers only to a natural law, that of survival. It is, however, laws, or the lack of them, that increasingly determine the survival of wildlife in our various states. Heedless of state and national borders, wildlife move according to patterns established by millions of years of evolution. Pressures on their habitat, more often than not caused by human activities, cause decreases in wildlife populations and stress their abilities to adapt in order to survive. As development encroaches upon habitats, many wildlife species have become threatened, endangered or extinct.

Understanding the laws that both protect and fail to protect wildlife in this country is critically important to implement the measures that will guarantee its sustainability in the future. The three chapters comprising Part I of the Handbook address some of the issues that confront the people of the United States in attempting to protect and manage their wildlife.

Unseen but affecting the nation's myriad ecosystems and varying numbers of wildlife species and populations are federal, state and sometimes local wildlife laws that regulate management and protection. At the state level, the laws vary widely in their comprehensiveness, protection of species, considerations of animal welfare, resources for various programs, and hunting and fishing restrictions. For example, bear parts illegally poached in one state may be legally sold across the next state's border. Strict restrictions on taking a species that migrates may be nonexistent in the bordering state into which that animal has historically traveled. Penalties for violations of wildlife laws also run the gamut from the occasional felony with mandatory sentencing to more common discretionary civil penalties of as little as ten dollars.

Despite dawning recognition of the importance of wildlife laws, spurred by the controversy over logging in Pacific Northwest forests that provide the habitat for the Northern spotted owl, the legal community is only now beginning to devote to wildlife issues the same attention as is devoted to other environmental issues such as clean air, clean water, and waste management Because of this and the complexity and difficulty in managing wildlife and protecting habitat to ensure survival, wildlife law has quickly become one of the most controversial areas of environmental law . Until recently, wildlife law was not even recognized as an active component of what was considered to make up the field of "environmental law" per se. Though seldom viewed as such by the legal community, wildlife is a resource and a natural heritage with as much need of stewardship as our lands, forests and precious minerals.

Some of the wildlife, issues under debate by the environmental legal community that impact wildlife law include: the impending reauthorization of the federal Endangered Species Act; habitat issues related to logging and the preservation of ancient forests; development of dams and water use and rights; [*7] the effects on wildlife of pollution from mining and other extractive industries; and the growing awareness among legislators of the need to consider wildlife in the writing of environmental legislation and other legislation related to development.

Throughout the history of this country, federal and state wildlife legislation has motivated an intricate dance over jurisdiction and the right to manage wildlife. Federal wildlife laws have largely evolved out of the need to protect certain habitats or a certain species or type of animal such as migratory birds. On occasion federal legislation has been passed as an implementation of the terms of an international treaty to protect wildlife, such as the Migratory Bird Treaty Act, which implements treaties with Mexico, Japan, Canada and the Soviet Union,1 or the Marine Mammal Protection Act, which in part implements the Polar Bear Agreement with the five circumpolar nations.2

State wildlife laws have largely developed by the nature of states' "ownership" of the wildlife within its borders in trust for its citizens, with states shouldering the right and duty to manage that wildlife.3 Federal wildlife laws generally preempt state laws only when it is necessary to manage or conserve wildlife species occurring over several or many states. State laws often expressly include or compliment federal laws such as the Endangered Species Act, whose list of endangered species is usually adopted in full by states in their own legislation regarding endangered and threatened species.

Legislation for management or protection of wildlife has often accumulated in state fish and wildlife codes through accretion, in response to various issues or crises affecting a state or regional areas, rather than from a comprehensive policy. Hence, there is little consistency between states, especially in enforcement of wildlife laws, and there has been no easy method of ascertaining what neighboring states have legislated in order to consider enacting compatible legislation. Adding to the vast complexity of the states' laws themselves are the individual state regulations, local ordinances and Native American wildlife laws, each with their sometimes contradictory or overlapping jurisdiction and management issues.

Despite the complexity of state wildlife laws, many states are aware of the irrefutable fact that wildlife knows no legal boundaries, and states are examining ways to open up the boundaries between states so that effective and consistent legislation can be passed, which should in turn improve interstate cooperation. While some states have enacted specific interstate agreements with their neighbors, many more are needed. Comparing differences in state laws will illustrate how interstate agreements and more consistent legislation can improve wildlife protection and management. Increased habitat protection and non-game wildlife management, poaching issues, habitat loss, and better funding for agencies are other areas where states should compare provisions in other states' legislation.

This overview presents the historic background of development of wildlife law in this country and an outline of federal and state wildlife laws, with a brief discussion of international laws. Later chapters in Part I will examine the critical issues of poaching and illegal taking of wildlife in the United States and make recommendations for legislative change.

An understanding of the history of the development of wildlife laws in this country and elsewhere may be helpful to understanding where the laws have come from, where they stand today, and where they may be going.

HISTORY OF WILDLIFE LAWS

Greek and Egyptian cultures often held wild animals in revered positions, while during the Roman Empire it was believed that they were created for the use and pleasure of man. Under Roman Law, animals were considered the property of no one, but anyone who could catch or kill a wild animal gained its ownership.4 Ironically, the Romans revealed in their art an appreciation of the graceful beauty of wild animals and traveled great distances to procure exotic mammals such as lions and bears for exhibits, but then saw no contradiction in slaughtering the exhibit animals. Indeed the ancient Romans apparently found a "pleasure in the often hideous sufferings and agonizing deaths of quantities of magnificent and noble creatures."5

[*8] The Christian concept of dominion over wildlife was set forth in book of Genesis in the Bible: "Then God said, 'Let us make man in our image, in our likeness, and let them rule over the fish of the sea and the birds of the air, over the livestock, over all the earth, and over all the creatures that move along the ground,"6 The Jewish faith, also embodied in Genesis and the Old Testament of the Bible, not only abhorred the killing of animals for sport, but passed laws prohibiting cruelty to them and indicating a concern for their well-being.7 Native Americans, in the meantime, had developed over the centuries an elaborate system of traditions, culture, and religion which reflected respect and often sacred status for many wild animals.

During the Dark and Middle Ages, when the Roman Catholic Church assumed preeminence, the civilized world's relationship to animals was summed up by St Thomas Aquinas, who wrote, "For by divine providence they are intended for man's use in the natural order. Hence it is no wrong for man to make use of them either by killing or in any other way whatever."8 This concept of wildlife changed very little in Europe over the ensuing centuries, and it produced the English tradition of "harvesting" wildlife for man's own purposes, a tradition that carried over to North America with the arrival of European settlers.

Europeans found upon arrival in America an almost infinite number and array of wildlife species, from marine mammals packing the shoreline to flocks of birds blackening the sky. Colonial Americans treated wildlife as an endless bounty to be taken at will and used for survival and profit. In the development of wildlife laws, however, there were four goals of English wildlife laws that established precedent and survived as a direct legacy of early English law.

The first goal of early English wildlife law and one of the most difficult to achieve, was the sustainability of the harvest so that wildlife populations could be maintained and continually harvested.9 While this has also been the purpose of many current wildlife laws, this goal may be no easier to achieve today than it was centuries ago. Populations of game species are now tracked with accuracy, but it is still often difficult to ascertain whether a population of a non-game species is successfully maintained, and if so, in what regions or ranges and under the influence of what variables.

The second goal of wildlife laws was to regulate human behavior by regulating hunting methods, restricting the use of weapons.10 Often hunting laws in England were concerned with keeping weapons out of the hands of the poor and the dissident. These were called "qualification statutes" and were a blatant attempt by the aristocracy to maintain power and control. Hunting restrictions were also necessary to regulate methods of taking wildlife.11 Without restrictions, hunters would stoop to all levels to take wildlife, including night hunting, drowning, fires, and other unsportsmanlike taking techniques. Regulation of methods of hunting is still a major goal of modern state wildlife laws.

The third goal of wildlife laws was wealth discrimination.12 These laws would restrict the classes of people who were allowed to hunt, and would sometimes restrict the types of animals that could be sold or eaten.13 This goal and the qualification statutes in general do not survive in the United States laws today.

The fourth goal was based upon the idea of the intrinsic right of wildlife to exist. As early as the 16th Century in England, the king had a separate legal jurisdiction called the "Forest Jurisdiction." The Forest Jurisdiction had special officials, special doctrines protecting wildlife, and special courts to handle wildlife violations.14 This form of wildlife law was not totally altruistic as it was developed largely for the pleasure of the king to have wildlife available to him. This goal is still reflected in some of the state and federal wildlife laws today.

As wildlife laws evolved in England, several forms or methods of management became somewhat more defined. One form, restrictions on the taking of wildlife were accomplished in several ways: hunting could be forbidden during the reproductive or juvenile stages for various species;15 limits could be put on the apparatus used for taking wildlife (as a modern example, state wildlife laws often restrict the use of types of firearms and other weapons, lights, and various fishing devices such as explosives and [*9] certain nets used for taking.); the number of people allowed to hunt could be restricted; and laws could be used to attempt to decrease the value of an animal (by making sale of an animal illegal, it was hoped that the commercial value would fall. This has not been an historically effective method of restriction, however, as black market prices for wildlife even today continue to make illegal taking lucrative.)

A second form of wildlife management was habitat preservation through systems such as the English Forest Jurisdiction mentioned above. This was managed somewhat like a wildlife preserve, but included private lands as well. For example, private lands in England had to retain adequate foliage for wildlife forage and cover. All forestland was subject to an "easement for the benefit of wildlife" during the winter months so that the wildlife could be fed if necessary.16 In addition, herds of domestic animals had to be limited so that wildlife could successfully compete for food. If the wildlife increased such that they required the use of all the land for forage, the herdsman was out of luck, rather than the wildlife. As a form of compromise by rulers, domestic animals were often allowed to run over public forest ground.17 Habitat preservation is an active arena for wildlife legislation today, however, modern competition for use of public and private lands for grazing domestic animals has become an area of contention.

A third form of wildlife management that evolved in England was stocking of animals to increase populations and thus the yield of animals.18 This practice was made common in the United States, where stocking is an important function of fish and wildlife departments.

Early American colonial wildlife laws were not so much based on aristocracy as they were on survival. Initially, free taking of any and all wildlife was the order of the day, because of the incredible wealth of species found in the New World. Free taking applied even to private lands, such that hunters would pursue their game at will. Undeveloped private lands were open by law to wildlife takers, and land could only be excluded by fencing or developing, such as for agriculture.19

Managing wildlife in early America began with regulating the taking of wildlife near the Atlantic seaboard. Many of these wildlife laws sought to maintain maximum sustained yield of wildlife while preventing their depletion. 20 Animals became protected by moratoriums on hunting for periods of time, by protecting animals during breeding periods or during severe winters.21 Poor people often suffered, but were somewhat protected by the laws allowing taking of wildlife damaging their property, and those allowing taking for subsistence.22

In the middle and southern colonies, status privileges were afforded under wildlife laws in a manner similar to the" qualification" statutes of England. Under such laws, slaves and Indians were often not allowed to hunt.23 Monopolies developed for taking wildlife, especially inland fish.24 These monopolies were highly regulated, like a utility, and were seen as helpful to commerce.

Enforcement of wildlife laws in colonial times was most difficult Poachers were hard to find or catch or limits on numbers of game that could be taken, or bag limits, were ignored. The more effective restrictions were in the market place, by illegalizing the sale of certain animals.25 Systems for rewarding the informer were more successful at obtaining convictions than enforcement by game wardens.26

Bounties were used as an attempt to exterminate animals that became a threat to agriculture. Bounty laws assured decimation of nuisance animals. This practice became a popular local practice in various regions, and local governments had to become more and more creative to keep up with the bounty hunters' ingenious methods developed for presenting an animal for bounty more than once.27

Wildlife populations declined in North America through the nineteenth century. From herds of buffalo on the plains, to the beaver and the passenger pigeon, certain species of wildlife were decimated. This occurred for several reasons, not the least of which was the lack of enforcement of wildlife laws. Other reasons for the decline in wildlife population were the policies of extirpating nuisance species, [*10]

especially large predators, widespread ignorance of why wildlife was actually disappearing, excesses in taking caused by commercial (usually fashion) demand, blatant excesses in hunting, and loss of habitat because of agriculture, logging and other settlement activities.28

The group that came to the rescue of American wildlife initially was the sportshunters. Hunters had an interest in halting the decline in wildlife populations, and their efforts contributed to passage of laws for protection of wildlife. Laws began to restrict hunting to those who acquired licenses to do so, and funding for wildlife agencies began to come directly from hunting and fishing license fees. Game wardens could then be paid with those funds to enforce wildlife laws. In addition, sportsmen could argue effectively against market hunters because domesticated animals could well supply the food needs of the population.29 It is still the sportsmen today who provide most of the funding for state fish and wildlife agencies to manage wildlife, acquire habitat, restrict the impact of taking, and enforce the fish and wildlife laws. Fees and taxes from sportsmen also fund some of the programs created under federal laws for conservation and protection of wildlife.

International treaties impact state management of wildlife to the extent that federal legislation implementing the treaty protects or otherwise affects species or types of species of wildlife within the states. Such federal laws usually complement or enhance conservation efforts by state agencies.

International wildlife treaties have developed in large part to aid in the management and protection of specific severely depleted species of wildlife in their international ranges.30 These treaties can range from bilateral agreements, ratified by two signatory nations, to multilateral treaties, where ratification of the treaty is generally more complex and may include many nations. To become enforceable within a nation, treaties must be implemented by national legislation within that country.31 Ratification of a treaty by the United States requires the advice and consent of the United States Senate for our nation's participation.32 In addition, federal legislation must be passed to implement the treaty's terms into enforceable United States law. There are dozens of international environmental and wildlife treaties to which the U.S. is signatory. Nevertheless, international enforcement of treaties is difficult because nonsignatory nations are not bound by them. Signatories are bound only to the extent that they have enacted their own implementing legislation, and to the extent that other nations try to force their compliance. Further, if a nation lodges a formal protest against a requirement, it can exclude itself from enforcement

Most treaties are species-specific: examples include the International Convention for the Regulation of Whaling Convention,33 the Polar Bear Agreement;34 and the Interim Convention on the Conservation of North Pacific Fur Seals.35 Other treaties are an attempt to attain general cooperation in protection of wildlife or habitat, such as the Convention on International Trade in Endangered Species of Wild Fauna and flora (CITES),36 and the Convention Concerning the Protection of the World Cultural and National Heritage.37

There are several general types of federal laws that impact wildlife: Laws to protect specific species or types of species, such as the Endangered Species Act, Bald and Golden Eagle Protection Act, and Marine Mammal Protection Act; federal acts which implement the terms of international treaties regarding wildlife, such as the Migratory Bird Treaty Act; federal legislation such as the Lacey Act Amendments of 1981 to enforce state, Native American, or foreign wildlife laws, in addition to federal laws, and restrict commerce in wildlife; laws specifically to designed assist states in restoration of wildlife resources, such as the Federal Aid in Wildlife Restoration Act and the Federal Aid in Sportfish Restoration [*11] Act; general conservation and environmental protection acts, such as the National Environmental Policy Act, Fish and Wildlife Coordination Act, National Wetlands Act, Clean Air Act and Clean Water Act; and laws to protect specific habitats, such as the National Wildlife Refuge System and the National Wilderness Preservation System.

An explanation of selected federal wildlife laws sets the stage for their interaction with and impact on state wildlife laws which deal with the same issues and/or species. The statutes described below have specific impact on state wildlife laws, which often refer directly to federal laws.

The Endangered Species Act of 1973, as it currently stands,38 is the broadest federal statute ever enacted for protection of wildlife species. The Act protects both animal and plant species that are "endangered," which term is defined under the Act as a species determined to be in danger of extinction throughout all or a significant portion of its range.39 It also protects "threatened" species, which are species likely to become endangered within the foreseeable future throughout all or a significant portion of its range.40

Under Sec. 9 of the ESA, it is prohibited for any person, including private and governmental entities, to "take" an endangered or threatened species. A "taking" is broadly defined: to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."41 Under the Palila I and II cases out of Hawaii, "taking" was found by the federal district and appellate courts to include significant habitat modifications which would injure or kill listed species, and to include actions that would prevent the recovery of the species by affecting essential behavior patterns.42

Listing a species as threatened or endangered under the Act may be accomplished under Sec. 4 through the Secretary of Interior, acting through the U.S. Fish and Wildlife Service, or through the Secretary of Commerce (for listing marine species), acting through the National Marine Fishery Service.43 Private citizens may also petition to list or change the status of a species.44 The listing shall be based on "the best scientific data available."45 In 1978, the listing procedure was changed to require designation of a species' critical habitat (the area needed for the species to make a successful recovery) concurrently with the listing.46 Consideration of economic impacts in critical habitat designation decisions was also permitted.47 A species thus could not be listed without its critical habitat also being designated. Concurrent designation proved to be onerous to the agencies because of the difficulty of designating critical habitat.

Linking the listing procedure to critical habitat designation and to economic considerations halted species listing almost entirely. Approximately 2,000 species proposed for listing in 1978 were withdrawn. During the first year of the Reagan Presidency, no species were added to the protected lists.48

The 1982 amendments to the ESA changed the concurrent critical habitat designation to the "maximum extent prudent and determinable."49 In 1988, further amendments required the Secretary to establish a monitoring system for the status of the enormous numbers of candidate species for listing, but as yet unlisted.50 Emergency listing powers were also enacted to prevent significant risk to the well-being of any candidate species.51

The affirmative requirement on the Secretaries to prepare recovery plans for the survival of the listed species are also found in Sec. 4 of the Act.52 Sec. 7 directs federal agencies to ensure that their actions do not jeopardize the continued existence of listed species, or destroy or adversely modify a species' critical habitat.53 It is under Sec. 7 that the Endangered Species Committee (termed the "God Squad" because of its power to allow elimination of a species) was created to authorize exemptions from the Act.54 Under Sec. 7, agencies must consult with either the U.S. Fish and Wildlife Service or National Marine Fishery Service if an action is likely to affect a listed species, to insure that any agency action is [*12] not likely to jeopardize the continued existence of an endangered or threatened species, or result in the destruction or adverse modifications of its critical habitat.55

Exceptions to the Act also exist An exception to the prohibitions against taking of endangered or threatened species is provided in Sec. 10, which allows for the development and submission of a habitat conservation plan ("HCP") if the taking of the species is incidental to an otherwise lawful activity.56 Sec. 7 allows an exception for agency action through issuance of an "incidental take statement" as part of the biological opinion required regarding the agency action.57 The federal Endangered Species Act is expressly referred to in the fish and wildlife codes of almost every state. Most states expressly adopt the federal list of protected species, and provide their own list, and many have modeled their state statutes after the federal ESA.

Lacey Act Amendments of 1981, 16 U.S.C. § 3371, et. seq.

The Lacey Act Amendments of 1981 provide broad federal criminal enforcement of federal, state, foreign and Native American wildlife laws. The Act makes it a federal crime for any person to acquire or sell any fish or wildlife taken in violation of state, federal or tribal law.58 The Lacey Act in effect expands state enforcement authority by allowing federal enforcement of state wildlife laws. (See Chapter 3 for a complete discussion of the Lacey Act.)

The Migratory Bird Treaty Act is the Congressional implementation of a series of international treaties, beginning with the Convention With Great Britain for the Protection of Migratory Birds in 1916.59 Other treaties regarding conservation of migratory birds include those with Mexico, Japan and the Soviet Union.60 Each of the treaties recognizes the need for conservation of migratory birds, and establishes fairly specific closed hunting seasons for these birds.61 The Migratory Bird Treaty Act makes it unlawful to "hunt, take, capture, kill, ... [or] possess" any bird protected by the Convention except as permitted by the Secretary of Interior.62 The Secretary must determine when and to what extent, if at all, and by what means taking may be allowed as to migratory birds. The Act provides that nothing therein prevents the states from making or enforcing laws or regulations that are consistent with the Conventions or the Act, or that give further protection to migratory birds, their parts, nests or eggs.63 All states refer to and require that agency and hunter action be in concert with the Act Many states have incorporated further protection into their wildlife laws, as the state summaries indicate.

Federal Aid in Wildlife/Sportfish Restoration Acts, 16 U.S.C. §§ 669-669i and 777-777k

Virtually every state fish and wildlife code contains assent provisions to the Federal Aid in Wildlife and Sportfish Restoration Acts. Better known as the Pittman-Robertson Act, the Federal Aid in Wildlife Restoration Act was enacted in 1937 to consistently fund state wildlife programs. It provides federal assistance for the restoration, maintenance, and acquisition of wildlife habitat, management of wildlife resources and areas, hunter education programs, introduction of wildlife into suitable habitat, and for surveys of and research into wildlife management problems.64

Also provided by the Act was the "federal restoration to wildlife fund," comprised exclusively of excise taxes on firearms, other weapons and ammunition. While a percent of these annual revenues were allocated for administration, the remainder was apportioned among the states, who could apply for funding for up to 75% of wildlife restoration project costs.

Initially the Pittman-Robertson Act resulted in a significant amount of federal control over state wildlife restoration projects because it placed restrictions on types of projects funded and set certain standards for states to meet in order to receive funds. In past decades, however, a series of amendments have increased the flexibility of the states in using Pittman-Robertson funds. The most significant amendments were passed in 1970. The first allocated a portion of revenues from a tax on pistols and [*13] revolvers for state hunter safety programs. The second allowed states to submit a "comprehensive fish and wildlife management resource plan" instead of a specific restoration project. The period of the plan submitted must be at least five years, and must "insure the perpetuation of these resources for the economic, scientific, and recreation enrichment of the people,"65

The Federal Aid in Sportfish Restoration Act, commonly called the Dingell-Johnson Act, has nearly the same provisions for federal aid to states for marine and freshwater fish projects, and boating facilities and aquatic resources education.66 Funds are obtained through taxes on fishing tackle and other equipment, and motor boat fuel. "Project activities include acquisition and improvement of sport fish habitat, stocking of fish, research into fishery resource problems, surveys and inventories of sport fish populations, and acquisition and development of access facilities for public use."67

The Marine Mammal Protection Act (MMP A) was originally enacted in 1972 in response to the rapid depredation of marine mammal species, including whales, dolphins, seals, sea otters, manatees, walruses, and polar bears.68 The Act imposes a moratorium on the taking and importation of marine mammals and their products, with some exceptions regarding scientific research purposes and commercial fishing incidental takings.69 An exemption allows the taking of marine mammals by any "Indian, Aleut, or Eskimo who dwells on the coast of the North Pacific Ocean or the Arctic Ocean."70 The exemption is only for taking for native subsistence purposes, or for "creating and selling authentic native articles of handicrafts and clothing."71 Any taking done for subsistence or handicraft purposes may not be done "in a wasteful manner."72

Sec. 109 of the Act provides that no state may enforce any state law or regulation relating to the taking of any species of marine mammal.73 That section does provide a mechanism where the moratorium on taking marine mammals can be waived, and management authority returned to a state which is found to have laws and regulations consistent with requirements of the MMPA. However, the only instance of attempted use of this waiver was in 1975 when the management of the Pacific walrus was returned to the State of Alaska.74 Alaska also requested return of management of the other marine mammal species within its jurisdiction, but in the meantime was sued by Alaskan natives.75 The court ruled in favor of the natives, enjoining the federal government from approving any state laws restricting taking by the natives under the MMPA.76 Alaska then elected to return management authority of marine mammal species to the federal government. Thus, state regulation of marine mammal wildlife has been relinquished to the federal government in all instances.

"State wildlife laws of this century reflect substantial contributions toward advancing the condition of wildlife,"77 However, state wildlife laws have developed more in response to individual issues and needs of the each of the states than in response to an overall comprehensive wildlife management and protection policy, A tension has always existed between the rights of the states to manage the wildlife within their borders and the right of the federal government to restrict taking or otherwise manage wildlife in the national interest. States attempting to manage wildlife have run up against arguments that their actions conflict variously with the U.S. Constitution's Commerce Clause, the Privileges and Immunities Clause, and the equal protection clause of the Fourteenth Amendment. The extent of the states' right to exercise its police power under the Tenth Amendment to the Constitution has also been challenged.

Federal preemption has been tested with regard to state power to manage wildlife. As early as 1920, the U.S. Supreme Court in Missouri v. Holland,78 found that a federal game warden's enforcement of the Migratory Bird Treaty Act was not an unconstitutional invasion of the Tenth Amendment right of police power of the state. The Court found that protection of migratory birds is a national interest of the [*14] first magnitude, and that the federal treaty making power is supreme. And in New Mexico State Game Commission v. Udall,79 the Court found that, under the federal property power, the federal government could kill deer on a national park within New Mexico without a state permit without violating the state's right to manage its own wildlife.

The states' right to affect trade in wildlife and wildlife parts has also brought up consideration of state legislation's impact on interstate commerce and possible violations of the Commerce Clause of the U.S. Constitution. In the 1896 case of Geer v. Connecticut,80 the U.S. Supreme Court found that states have "ownership" of the wildlife within their borders, and that a state has a duty to preserve for its people a valuable food supply. Thus the Commerce Clause was not violated by a Connecticut Statute which forbade possession of birds taken within the state for the purpose of transporting them out of state. However, the property interest of the states in wildlife has limitations. In overruling Geer almost one hundred years later, the Supreme Court in Hughes v. Oklahoma,81 found that the Commerce Clause had been violated by enforcement of an Oklahoma law forbidding the transporting of minnows raised in Oklahoma to a point outside of the state. The Court found that a state may protect its wildlife only in ways consistent with our nation as one economic unit, and that discrimination against interstate commerce is not allowable when equally nondiscriminatory alternative conservation measures are available.

The Supreme Court found no such Commerce Clause violation in Maine v. Taylor,82 wherein Maine's ban on importation of golden shiner fish was upheld because of Maine's legitimate local purpose in guarding against environmental risks of non-native parasites and disruption of ecology. Thus, a state's wildlife laws that discriminate against or restrict commerce may be allowed if they serve a legitimate state interest, such as protection of the environment, and there are no reasonable alternatives to the action mandated by the statute. Despite these limitations, by and large states still retain the lion's share of the responsibility for the management and protection of the wildlife species that reside in or migrate through, their borders.

Current state wildlife laws are almost infinite in their variety of treatment and organization of wildlife management and protection provisions. In attempting to summarize the wildlife laws of each state of the United States, it was found that state wildlife laws generally fit into ten standard categories that can be used to achieve a uniformity of presentation. These are: policy; definitions; agencies; protected species; exceptions to protection; hunting, fishing and trapping provisions; animal damage control; enforcement; habitat protection; and Native American provisions.

As noted in Chapter One there are many topics within the various codes that had to be excluded from the summaries within this Handbook. However, some of the many interesting topics which appear in codes deserve some discussion. The following cursory discussion of assorted topics within state wildlife laws is organized according to the ten broad categories above. Where significant, trends and new developments seen in states are mentioned. The reader is referred to Chapter 4,83 which discusses a myriad of recommendations regarding each of these topics and provides an extensive treatment of favorable and creative legislation for states to consider.

State Wildlife Policy

Policy statements by legislatures of the states often speak to the desires of the people to see a program brought into being, a policy enforced, or a trend reversed in loss of wildlife. States such as California have policy statements at the beginning of provisions for almost every fish and wildlife program. Other states have no policy statements. Such statements give a more clear idea of the relevant and pressing issues and concerns of the citizenry of a state.

[*15] 2. Relevant Wildlife Definitions

Definitions of various species of fish and wildlife, and of other related wildlife terms often differ between states. The definition of "wildlife," for example, can be as broad as Alaska's, where invertebrates and even insects are included, or it may not be defined as in New Mexico wherein the result is that reptiles and amphibians have no protection under the fish and game code. Definitions of endangered and threatened species tend to be quite consistent between states, and are usually based upon the definitions in the federal Endangered Species Act Interesting differences exist between states' definitions of non-game and game wildlife and non-game and game fish. Relevant wildlife definitions for each of the states (non-wildlife definitions that exist in fish and wildlife codes are not included) can be found in the Appendices of this Handbook.

State Fish and Wildlife Agencies

Agency Names: There appears to be a growing trend for state legislatures to rename state agencies that were previously termed "Game and Fish Department" to either Wildlife Department, or Fish and Wildlife Department This appears at first blush to be a somewhat innocuous change, however, it does allow for the scope of authority of these departments to legitimately extend to management of wildlife other than game wildlife that is traditionally hunted, fished or trapped. Departments are having to take on this responsibility of non-game wildlife management, whether or not they are fully funded or given the name to match these duties.

Department Organization: Most states have a fish and wildlife agency separate from other environmental and natural resources departments. Such agencies usually have a director who is responsible for management of the fish and wildlife resources of the state. Often the director is responsible to a commission made up of appointees. Several states, however, merely have a department of natural resources or environment, into which the fish and wildlife management responsibilities fall. Often such a department is headed by a secretary who has oversight and primary responsibility for fish and wildlife resource management.

Department Director and Commissioner Qualifications: Three tables in Chapter 5 outline the various methods of appointment and required qualifications, if any, of the director, commissioner, and commission members of each of the states. Many states have bestowed the authority on the governor to appoint the fish and wildlife department directors and commissioners, who often to serve at the pleasure of the governor as well. This can lead to a politicized commission and department, which may lead to changes in policies with changes in administration. An awkward situation may also arise if a governor appointed commissioner must oversee a nonpolitical director and department, which can lead to lack of coordination and effectiveness. However, there appears to be a trend toward requirement of various qualifications for department directors and especially for the several commissioners.

Qualification requirements for holding office can vary from none to a requirement of a background in wildlife conservation, to affiliation with a ranching or agricultural organization or association, to a required number of years in wildlife management practice.

Agency Funding Sources: Sources of funding for fish and wildlife departments are becoming increasingly important, with belt-tightening by legislatures in almost all states concurrent with increased responsibility of agencies for non-game wildlife and habitat management Historically fish and wildlife agencies have been funded through fees derived from sale of hunting, fishing and trapping licenses, fees and permits. State agencies must become more and more creative in seeking out new sources of funding other than license fees and general legislative appropriations. The " Agency Funding Sources" table in Chapter 5 lists most of the creative funds and sources of funding for each of the states. States usually have a "general fund" from which they derive most of their monies for operation of the department, and [*16] which is most often funded by license, penI1it and other fees. Other useful methods of acquiring funds, and which mayor may not feed directly into the general fund of the department, include sale of various wildlife stamps and related artwork. Wildlife stamps can be mandatory for taking a certain type of species, or they can be purchased on a voluntary basis. Examples of stamps are habitat protection stamps, duck stamps, and migratory waterfowl stamps. Artwork for various stamps may also be used for sale of posters, prints and other products. Posters and artwork other than stamp-related are also provided for in many states.

One unique and successful form of funding for a fish and wildlife agency is found in the Missouri State Constitution. Under Article IV of the constitution, it is declared to be the policy of the people to preserve and protect wildlife, and that a separate severance tax is therefore issued for funding the department's activities (see Sample Statutes, Chapter 7, for full text of provision).

Funds can also be obtained from fines and penalties collected for violations of the fish and wildlife laws. Some states provide for division of such monies collected between the department and the county in which the fines were imposed, thus enhancing the county's motivation for consistent imposition of adequate penalties.

Often funding is provided directly through state legislative appropriation, for specific programs such as habitat acquisition, or as general annual appropriations. Trends in state legislatures are toward more creative funding sources, and for funding aimed at specific programs or policy directives.

Advisory Boards, Councils and Committees: Many state legislatures have made provisions within fish and wildlife departments for a variety of advisory boards, councils and committees. These various councils are outlined in the table titled " Agency Advisory Councils," wherein a brief description of the roles of each committee are given. Advisory councils usually review and make recommendations to the department, directory or commission regarding a specific topic such as endangered and threatened species or habitat protection. States tend to require that members be qualified in the field for which the committee was created, and some states use many such councils to assist with the responsibilities of the department and commission.

Volunteer programs: Volunteer programs have been developed as a creative way to assist with the problem of adequate funding for state fish and wildlife agencies, as well as a way to enhance citizen awareness and participation in wildlife management, conservation and protection. Some states allow volunteers to train for and become commissioned as temporary state game wardens. Provisions are even made, in Louisiana for example, for commissioning of volunteer retired game wardens.

Other states may provide for a hot line for citizens to call regarding observed or potential fish and wildlife law violations: Reward programs can provide monetary rewards to citizens upon conviction of the violator. Chapter 4 contains examples of excellent volunteer programs, as does the table "Rewards for Assisting with Enforcement Against Violators" in Chapter 5.

4. Protected Species of Wildlife

Non-game Wildlife Provisions: Almost every state makes provision in its game and fish code for protection of non-game, or non-hunted wildlife species. States are more often passing legislation for protection of such species, and protections usually include prohibitions against taking, possession, selling, buying or offering for sale such species. Certain states make specific provisions spelling out protection for a species of particular concern, such as the mountain lion or panther, or the grizzly bear.

Endangered and Threatened Species: Virtually every state except West Virginia has some statutory provision for protection of species determined to be either threatened or endangered under the federal Endangered Species Act in addition to their own list. There appear to be among the states different procedures for listing and de-listing species, but a majority of the states have generally adopted the procedure of the federal ESA wherein either the agency or an interested citizen or group of citizens [*17] may petition for an addition, deletion or change in the listing of a species. Many provide for public notice and a hearing before listing or de-listing, and other provisions are often made for citizen participation in the listing process. Most states seem to rely on the federal standard for listing a species, that is, the best scientific data available. States appear to be maintaining the strength .of their endangered species protection provisions, and some states even encourage private landowner participation with incentives and assistance (see Chapter 6 discussion and recommendations regarding protected species of wildlife and habitat protection).

General Exceptions to Protection

Exceptions to the protection of otherwise protected species are generally made among the states, for scientific, educational or research purposes. Taking of otherwise protected species can usually occur under permit from the department, which may specify terms and conditions of taking. Types of permits allowed may include taking animals for rehabilitation purposes, keeping animals in captivity as pets or for display or propagation.

Generally states also make exceptions to protection for zoos and other educational institutions which may hold protected animals live in captivity for exhibition and education or research purposes. Such institutions often may also sell or exchange such protected animals under separate permit.

Hunting, Fishing, Trapping Provisions

Restrictions on hunting, fishing and trapping often make up the lion's share of fish and wildlife code provisions. Some states go into great detail regarding eligibility for licenses and permits, dates of issue, numbers that may be issued, and fees for each. Many other states deal with such details in their department regulations rather than through legislative mandate. Restrictions on methods of taking and equipment used are universal, such as restrictions on use of spotlights, poisons, dogs, traps, and vehicles. Seasons, bag limits, possession limits and other restrictions on harvest are also detailed within states' statutes.

Licenses and Permits: Many types of licenses and permits, tags, stamps, certificates, applications and reservations may be issued by the state fish and wildlife agencies and/or the commission or commissioner, including recreational hunting licenses for use of firearms, bow and arrow or other weapons for taking wildlife, fishing and sportfishing licenses, and trapping licenses for taking fur-bearing animals. Activities authorized by licenses often require in addition, stamps, tags and other labels. Permits of various types often include reporting requirements to the department or commission.

Commercial taking or businesses involving use of wildlife or parts thereof most often require license and permits as well. Examples are guide licenses, fur-buyer licenses and taxidermy licenses (see "Statutory Regulation of Selected Hunting Businesses" table in Chapter 5).

Qualifications for licenses and permits include an array of requirements, such as age limits, requirements for completion of hunter education courses, resident versus nonresident considerations, along with various exceptions. These exceptions are not summarized in the Handbook, but include categories of persons such as senior citizens, handicapped citizens, military , and persons younger than age 12 to 16.

Hunter Education Programs: More states are requiring that applicants for hunting licenses show evidence of completion of a hunter or trapper education course. The "Hunter Education Courses" and "Trapper Education Courses" tables in Chapter 5 give a detailed overview of what requirements exist for the various states in this field. Hunter education can vary from merely firearm safety to hunter ethics and non-game conservation, and even survival techniques. Often states will allow a hunter to receive certification for a hunter education course if they have been so certified in another state or international province or country. Statutes often provide that course and certification may be issued by instructors from [*18] organizations with a proven interest in wildlife conservation, hunting and firearm safety . Some states even provide for firearm safety courses to be held in public schools for students.

Hunter Harassment Laws: There is a definite trend among state legislatures to pass hunter harassment laws that make illegal interference with or harassment of hunters or the wildlife that is being hunted. Although not described in each separate state summary, the "Status of Hunter Harassment Statutes" table outlines the states with such laws and some of the provisions and issues. A comprehensive study done in 1991 by the Center for Wildlife Law, "Report on the Constitutionality and Consistency of Hunter Harassment Statutes," comparing the hunter harassment laws of the fifty states, analyzed the constitutional issues surrounding these laws under the First Amendment of the U .S. Constitution.

Private Landowner Considerations: Private landowners are often given special consideration in the fish and wildlife laws, as their lands can be crucial to hunting, fishing and trapping activities. Landowners are often allowed to post their lands against hunting and to require permission before hunting or taking commences, or before entering the land. The tables in Chapter 5, "Permission to Hunt on Private Land" and "Permission to Trap on Private Land" summarize these provisions.

Buying, Selling and Transporting Wildlife: These provisions provide restrictions on commerce in fish and wildlife, including transportation and shipping provisions, and buying and selling wildlife, parts or products. Restrictions on buying, selling and transporting endangered, threatened, and other protected species generally exist in all states, and some states have specific provisions for species that are often poached, such as bears.

Import, Export and Release Provisions: States vary widely in their treatment of implementation of wildlife, ranging from no provisions at all, to extensive testing, quarantine and inspection provisions for restricting importation of non-native or even native but diseased, species. The trend in states is toward more restrictive legislation because of the problems presented by the importation of exotic species which may carry diseases or parasites, or which may, like the piranha, prove to be a voracious predator of native species. See discussion and recommendations on this subject in Chapter 6.

Animal Damage Control

In many states the majority of animal damage control provisions are not found in the fish and wildlife codes, but rather in state department of agriculture provisions regarding elimination of nuisance or pest animals. Such provisions often provide for state cooperation with the federal animal damage control program of the U.S. Department of Agriculture. The " Animal Damage Control" table outlines provisions that the state fish and wildlife codes do make for control and management of wildlife that is considered to be "nuisance," "pest" or "predatory."

Often a state department of fish and wildlife director or commissioner is specifically empowered to use methods of taking which are otherwise not allowed in order to control the species or the damage that it is causing or about to cause. Destruction of crops or other agricultural interests is a major reason for animal damage control operations. In addition, a landowner is very often expressly allowed to take and destroy animals that are destroying or about to destroy their crops, livestock or other property, usually under department permit Many states have provisions expressly allowing landowners or others to kill even an endangered species when there is an immediate threat to human life.

Certain states even allow for wildlife depredation and compensation programs, wherein the loss of crops or other property such as livestock may be compensated by the state upon proof of destruction by the landowner. These kinds of programs may become more popular among state legislatures to avoid "takings" issues that may otherwise arise.

Some of the more bizarre provisions for animal damage control include bounty programs, where specific bounties are offered for animals such as wolves, hawks, crows, bobcats, gophers, moles, beavers, [*19] and fox. Some provisions even require the skins, paws, heads or other parts of animals to be presented to the department for receipt of the bounty.

Enforcement of Wildlife Laws

Enforcement of wildlife laws takes many forms, and enforcement problems and suggested solutions are discussed in detail in Chapter 3, "Poaching in the U.S." State statutory provisions range from powers delegated to game wardens and other enforcement officers, to the types of criminal and civil penalties and the dollar amount of fines, and jail sentences, if any. Powers accorded fish and game wardens vary between states. Some states give full powers equal to police officers to wardens; some allow wardens to enforce only the provisions of the fish and wildlife code. Many states authorize wardens to search containers and vehicles without a warrant upon probable cause to believe that a violation of the fish and wildlife laws has occurred. The authority to arrest without warrant in the field is also often provided to game wardens.

Penalties for violations of fish and wildlife laws, regulations, rules or orders cover an incredible range between the states. Felony provisions are somewhat rare (see "States with Criminal Felony Provisions" table), but virtually all of the states impose misdemeanors for various violations. Jail terms are sometimes imposed, however many states leave the level of punishment upon conviction (e.g. fines and/or jail), if any, to the discretion of the sentencing judge. Fines set forth in the statutes are also generally very low. Restitution made to the state for the value of the animal lost is popular (see "Restitution, Spotlighting and Waste" table), and amounts to be paid are usually in addition to any other fines or penalties imposed. Restitution may be mandatorily imposed, however, for each animal taken. License or permit revocation or suspension is provided for upon conviction of certain fish & wildlife provisions such as spotlighting. Revocation and suspension periods vary, as do their mandatory or discretionary nature. The table titled "License Revocation and Suspension" outlines the differences between states in this area of enforcement.

Seizure, confiscation and forfeiture of illegal devices or of equipment or vehicles used in fish and wildlife provision violations are common enforcement provisions among states. Forfeiture can be a strong detriment to violations, but not all states include valuable vehicles and airplanes as items that are subject to forfeiture.

Habitat Protection

As state legislatures have come to realize that the habitat of their state's wildlife is disappearing, more have passed legislation to protect that habitat. Within the habitat protection laws are some of the most creative provisions within the fish and wildlife codes of the states. Habitat protection laws run the gamut from ecological reserves where no taking is allowed of any wildlife, and which are established in large part for the benefit and recovery of endangered and threatened species, to state game refuges, sanctuaries, preserves, and parks, wherein taking is restricted to specific species and dates. Agencies and commissions are generally empowered under these provisions to acquire land or water, or various kinds of interests in that land, for protected habitat

Other habitat protection measures include prohibitions against pollution or dumping; provision for fishways or fish ladders on dams to ensure free passage of fish; and restrictions on stream bed diversions. Landowner incentives are often provided, such as assistance with planting for habitat; materials and/or assistance with developing habitat on private land; aid in posting lands; and designation of private lands as wildlife refuges. See the recommendations in Chapter 6 on this subject.

10. Native American Wildlife Provisions

Native American rights to hunt, fish and trap and to manage the wildlife within their own reservations has been a source of tension between tribes and state wildlife managers. These rights are [*20] generally spelled out in the treaties and court decisions on the subject. Only about a third of the states’ wildlife codes have wildlife provisions relating to Native Americans when hunting or fishing off reservations. Some states do not require Native Americans to carry licenses or pay license fees however, as long as they have proof of tribal membership. Taking for ceremonial or subsistence purposes is also provided for in several states. See Chapter 5 "Native American Provisions" table.

1  16 U.S.C § 703-711 (as amended 1984 and Supp. 1991.

2  16 U.S.C. § 1361-1407 (1984).

3  See Geer v. Connecticut, 161 U.S. 19 (1896), which found that states have a property interest in the wildlife within their borders (overruled in part by Hughes v. Oklahoma, 441 U.S. 322 (1979).

4  M. Bean, The Evolution of National Wildlife Law, 2nd ed. 1983, p. 10.

5  D. Favre, Wildlife Law, 1-9 (1991).

Genesis 1:26-28.

7  G. Horowitz, The Spirit of Jewish Law, 105-19 (1953).

8  Favre, Supra at 1-9, quoting T. Aquinas, Summa control Gentiles.

9  T. Lund, American Wildlife Law, Univ. Calif. Press, Berkeley, 1980, p 4.

10  Id. at 5.

11  Id. at 7.

I2  1d. at 8.

13  Id. at 9.

14  Id. at 11.

15  Id.

16  Id. at 16.

17  Id. at 17.

18  Id. at 14.

19  Id. at 20.

20  Favre, supra at 1-11.

21  Lund, supra at 29.

22  Id.

23  Id. at 26-29.

24  Id. at 27.

25  Id. at 30.

26  Id. at 31.

27  Id. at32-34.

28  Id. at 57-60.

29  Id. at62-63.

30  Regarding this topic see generally, Lyster, International Wildlife Law (1985).

31  Id. at 13.

32  Id. at 12.

33  International Convention for the Regulation of Whaling (Whaling Convention), Dec. 2, 1946, 161 U.N.T.S. 72.

34  Agreement on the Conservation of Polar Bears, Nov. 15, 1973, 12 I.L.M. 12, 27 U.S.T. 3918.

35  Interim Convention on the Conservation of North Pacific Fur Seals, Feb. 9, 1957, 314 U.N.T.S. 105.

36  Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 6, 1973, 12 I.L.M. 1085, 27 U.S.T. 1087.

37  Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), Nov. 16, 1972, 11 I.L.M. 1358; 27 U.S.T. 37.

38  Pub. L. No. 93-205, 81 Stat. 884 (Dec. 28, 1973), current version at 16 U.S.C. § 1531-1543 (1982).

39  Id. § 1532 (6), (2).

40  Id.

41  Id., §1532(19)

42  Palilia v. Hawaii Dept. of Land and Natural Resources, 471 F. Supp. 985 (D. Hawaii 1979), aff’d 639 F.24 495 (9th Cir. 1981); Palilia v. Hawaii Dept of Land and Natural Resources, 649 F. Supp. 1070 (D. Hawaii 1986), aff’d 852 F. 24 1106 (9th Cir. 1988).

43  16 U.S.C. § 1533 (a).

44  16 U.S.C. § 1533 (b)(3)(A).

45  16 U.S.C. § 1533 (b)(1)(B)(2) and (f).

46  Pub. L. No. 95-632, §§ 11, 13, 92 Stat. 3751 (1978).

47  16 U.S.C. § 1533(b)(1)(B)(2).

48  Rohif, The Endangered Species Act, A Guide to its Protections and Implementation, Stanford Environmental Law Society (1980), at 27.

49  16 U.S.C. § 1533(a)(3).

50  Pub. L. No.100-478, 102 Stat. 2306 (1988), 16 U.S.C. § 1533(b)(3)(C)(iii).

51  Id.

52  16 U.S.C. § 1533(b)(1)(B)(2) and (f).

53  Id. At § 1536(a)(2).

54  The "God Squad" was most recently convened to consider granting a BLM exemption for timber harvesting in the Pacific Northwest habitat of the endangered northern spotted owl.

55  Id. At § 1536 (c).

56  Id. At §1539(a)(2). For further discussion of the Sec. 10 HCP exception, see Musgrave, A Practical Guide to the Endangered Species Act, New Mexico Natural Resources Law Reporter, 1991.

57  16 U.S.C. §1536 (b)(4).

58  16 U.S.C. § 3372(a)(1)(1984).

59  16 U.S.C. § 703-711 (1984) and Supp. 1991.

60  Convention for the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, United States-Mexico, 50 Stat. 1311; Convention for the Protection of Migratory Birds and Birds in danger of Extinction, and Their Environment, Mar. 4, 1972, United States-Japan, 25 U.S.T. 3329; Convention Concerning the Conservation of Migratory Birds and Their Environment, Nov. 19, 1976, United States-USSR, 29 U.S.T. 4647.

61  Ch. 128, Sec. 2, 40 Stat. 755 (1918), 16 U.S.C. § 703.

62  Id. § 703.

63  Id. § 708.

64  16 U.S.C. § § 669-669i, as amended 2989.

65  16 U.S.C. § 669e(a)(1).

66  16 U.S.C. § § 777-77k, as amended.

67  U. S. Department of the Interior, USFWS Digest of Federal Resource Laws of Interest of the U.S. Fish and Wildlife Service, April 1992.

68  16 U.S.C. § 1361-1407.

69  The commercial fishing incidental takings section has been the focus of the dolphin-tuna controversy wherein millions of dolphins have been caught and drowned in the huge tuna nets, which are set by observation of schools of dolphins swimming with schools of tuna.

70  16 U.S.C. § 1371(b)(1984).

71  16 U.S.C. §1371(b)(1)and(2).

72  16 U.S.C. § 1371(b)(3).

73  16 U.S.C. § 1379(a).

74  40 Fed. Reg. 54959 (Dec. 24, 1975).

75  People of Togiak v. United States, 470 F. Supp. 423 (D.D.C. 1979).

76  For a complete discussion of this case see M. Bean Evolution of National Wildlife Law, (1983), at 303-304.

77  Lund, supra at 79.

78  Missouri v. Holland, 252 U.S. 416 (1920).

79  New Mexico State Game Commission v. Udall, 410 F.2d 1197, cert. den. sub. nom., 396 U.S. 961 (1961).

80  Geer v. Connecticut, 161 U.S. 519 (1986).

81  Hughes v. Oklahoma, 441 U.S. 322 (1979).

82  Maine v. Taylor, 477 U.S. 131 (1896).

83  R. Musgrave and M. Dow, Indian Wildlife Resources and Endangered Species Management, 1991 A.B.A. Sec. SONREEL, paper no. 9.

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