Arkansas Regulations not Preempted by Migratory Bird Treaty Act

Noe v. Henderson, 456 F.3d 868 (8th Cir. Aug. 7, 2006)

Terra Bowling, J.D.

The Eighth Circuit Court of Appeals has ruled that the Migratory Bird Treaty Act (MBTA)1 and the regulations promulgated under it do not preempt Arkansas regulations involving captive-reared mallard ducks.

Background
Arkansas Game and Fish regulations require that those maintaining captive-reared mallard ducks must keep the ducks in covered pens, comply with monthly reporting requirements, and obtain approval from the Arkansas Game and Fish Commission before releasing the birds.2 W.H. “Dutch” Noe, owner of Ducks & Ducks, Inc., Tommy Taggart, owner of Mallard Magic, and Brian Herndon, owner of Big Creek Hunting, were cited by the Commission for violating the regulations.3 After refusing to comply with the Arkansas regulations, Noe and Taggart’s Wildlife Breeder/Dealer permits issued by the Commission were revoked.4 The three men filed a complaint in federal district court, arguing that the Arkansas regulations were preempted by the MBTA. The United States District Court for the Eastern District of Arkansas held that the MBTA did not preempt the Arkansas regulations. Noe, Taggart, and Herndon appealed the decision.

Federal Preemption
State law may be preempted by federal law in several ways. In examining a preemption claim, a court will determine whether 1) Congress has explicitly prohibited state regulations; 2) Congress has implicitly prohibited state regulation by “pervasively occupying the entire regulatory field;” 3) state laws are in direct conflict with federal laws; or, 4) a federal agency, acting within its delegated authority, has shown intent to preempt state law.5

The Court of Appeals agreed with the district court’s finding that Congress did not occupy the entire field of permit requirements for captive-reared mallard ducks, because it was not specifically included in the MBTA. The court also found that neither the MBTA nor the regulations made pursuant to it conflicted with or expressly prohibited the Arkansas regulations. The court interpreted § 711 of the MBTA to permit the states to regulate the breeding and sales of captive-reared mallard ducks and other migratory birds reared in captivity for food, as long as the states acted in accordance with federal law. As a result, the Eighth Circuit affirmed the district court’s decision.

Endnotes
1. 16 U.S.C §§ 703-712.
2. Ark. Game & Fish Comm’n Code §§ 15.01, 15.05, 15.11(B), 15.12, and 15.13(D).
3. Noe v. Henderson, 373 F. Supp. 2d 939, 941-42 (D. Ark. 2005).
4. Id.
5. Noe v. Henderson, 456 F. 3d 868, 869 (8th Cir. Aug. 7, 2006).