W. H. Noe v. Scott Henderson

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 05-3244
___________

W. H. Noe, also known as W. H. *
(Dutch) Noe, doing business as Ducks *
& Ducks, Inc.; Tommy Taggart, doing *
business as Mallard Magic; Brian *
Herndon, doing business as Big Creek *
Hunting, *
*
Appellants, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
Scott Henderson, In His Official * [PUBLISHED]
Capacity as Director of the Arkansas *
Game & Fish Commission, *
*
Appellee. *
___________

Submitted: July 31, 2006
Filed: August 7, 2006
___________

Before RILEY, COLLOTON, and GRUENDER, Circuit Judges.
___________

PER CURIAM.

In this declaratory judgment action, W. H. Noe, d/b/a Ducks & Ducks, Inc.,
Tommy Taggart, d/b/a Mallard Magic, and Brian Herndon, d/b/a Big Creek Hunting,
appeal from an order of the district court1 granting summary judgment in favor of
Scott Henderson, in his official capacity as Director of the Arkansas Game and Fish
Commission. For reversal, appellants argue that the district court erred in holding that
the federal Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 703-712, and federal
regulations promulgated thereunder, do not preempt Arkansas regulations governing
activities involving captive-reared mallard ducks.

We review the district court’s decision de novo. See Crain v. Bd. of Police
Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir. 1991) (review standard; summary
judgment is particularly appropriate where unresolved issues are primarily legal rather
than factual); Nat’l Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 607 (8th
Cir. 1999) (preemption is question of law that this court reviews de novo). Federal
preemption occurs when (1) Congress explicitly prohibits state regulation; (2)
Congress implicitly prohibits state regulation by pervasively occupying the regulatory
field; (3) state law directly conflicts with federal law; or (4) a federal agency, acting
within the scope of its delegated authority, intends its regulations to have preemptive
effect. See Chapman v. Lab One, 390 F.3d 620, 624-25 (8th Cir. 2004).

To begin, we read the district court’s statement that “[c]aptive-reared mallard
ducks are not within the scope of the [MBTA],” in its context, to express the view that
captive-reared mallard ducks are not within the scope of federal permitting
requirements. The district court implied that Congress specifically left room for the
states to regulate in the area of permit requirements for captive-reared mallard ducks,
and therefore “[n]othing in the [MBTA] prohibits a State from requiring a permit for
possession or sale of captive-reared mallard ducks.” Such reasoning is consistent with
federal preemption principles. See Cipollone v. Liggett Group, Inc., 505 U.S. 504,

1
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas.

-2-
517 (1992) (Congress’s enactment of provision defining preemptive reach of statute
implies that matters beyond that reach are not preempted).

We further agree with the district court that neither the MBTA nor any
regulation promulgated thereunder conflicts with or expressly prohibits the state
regulations at issue. Contrary to appellants’ interpretation of 16 U.S.C. § 711
(“Nothing in this subchapter shall be construed to prevent the breeding of migratory
game birds on farms and preserves and the sale of birds so bred under proper
regulation for the purpose of increasing the food supply.”), the word “regulation” in
section 711 plainly refers to the regulatory process, see Black’s Law Dictionary 1311
(8th ed. 2004) (defining “regulation” as “[t]he act or process of controlling by rule or
restriction”), not specifically and exclusively to 50 C.F.R. § 21.13.2 In other words,

2
50 C.F.R. § 21.13 provides in part,

Captive-reared and properly marked mallard ducks, alive or dead, or
their eggs may be acquired, possessed, sold, traded, donated, transported,
and disposed of by any person without a permit, subject to the following
conditions, restrictions, and requirements:

....

(b) All mallard ducks possessed in captivity, without a permit, shall have
been physically marked by at least one of the [methods described] . . . .
(c) When so marked, such live birds may be disposed of to, or acquired
from, any person and possessed and transferred in any number at any
time or place: Provided, That all such birds shall be physically marked
prior to sale or disposal . . . .
(d) When so marked, such live birds may be killed, in any number, at any
time or place, by any means except shooting. Such birds may be killed
by shooting only in accordance with all applicable hunting regulations
governing the taking of mallard ducks from the wild: Provided, That
such birds may be killed by shooting, in any number, at any time, within
the confines of any premises operated as a shooting preserve under State

-3-
we interpret section 711 as allowing the states to engage in the process of regulating
the breeding and sales of migratory birds reared in captivity for food, provided the
states do so in a manner consistent with federal law. Accord 16 U.S.C. § 708 (nothing
in MBTA shall be construed to prevent states and territories from making and
enforcing laws or regulations for further protection of migratory birds, nests, and eggs,
provided they are consistent with MBTA and treaty conventions); 50 C.F.R. § 20.72
(no person at any time, by any means, or in any manner, shall take, possess, transport,
or export any migratory bird, or any part, nest, or egg of such bird, in violation of any
applicable law or regulation of any state).

Accordingly, the order of the district court is affirmed.
______________________________

license, permit or authorization.

-4-