In the late 1960's and early 1970's regulation of raptors' in North America underwent an intensive regulatory and legislative metamorphosis. In five short years, birds of prey, historically identified en famile as vermin, became the most regulated wildlife on the continent. The flagship federal statutes were the Endangered Species Act of 1973 (ESA) and Migratory Bird Treaty Act Amendment of 1972 (MBTA).3 This legislation effectively prohibited the sale of all native raptors in the United States. Access to the birds was restricted to a few qualified individuals and institutions. For the most part, the individuals were falconers who legally possessed birds prior to the Acts. At the time the Acts were passed, these men and women were beginning to breed raptors in captivity for the first time in history. Breeding projects were directed toward supplementing the declining wild stock of peregrine falcons. Both Acts proscribed the sale of listed species. As a result, raptor propagators, who had single-handedly developed specialized breeding techniques designed to save wild species of endangered raptors, found themselves unable to defray their substantial expenses by accepting consideration for the birds they produced. In 1978, recognizing their successful efforts, Congress amended the Endangered Species Act to exempt pre-act birds and their progeny from the prohibitions of the Act in order to facilitate transfers of captive-bred peregrine falcons (the only endangered or threatened species of interest to falconers) among falconers or propagators." The Secretary of the Interior promulgated regulations permitting the sale of captive-bred raptors among licensed falconers and propagators. Twenty-one states have adopted the full federal regulations allowing the sale of captive-bred raptors to qualified individuals;' twenty-three states have announced their intention to do so but have not promulgated the regulations. Two states, New York and California, will continue to prohibit the sale of all raptors. At least two other states have regulations permitting the sale of captive-bred raptors but with special provisions that are more restrictive than the federal regulations.' This article will examine the questions surrounding the private ownership of captive-bred raptors and the legality of state statutes which restrict the sale of captive-bred raptors beyond what is federally authorized. For example, who really owns a captive-bred bird? Can state prohibitions or restrictions on their sale in the name of conservation stand in the path of federal statutory and regulatory schemes which seek to encourage commerce in these animals in the name of conservation?
|Publication Title||Pace Environmental Law Review|
|Publisher||Pace Law School|
|Cite this work||
Researchers should cite this work as follows: