dissenting:
I cannot agree that the regulations adopted by the Secretary of the Interior and applied in this case are within his authority to effect the purposes of the treaties. I have reviewed the treaties, the Migratory Bird Act through its various amendments, and the legislative history. The support for including birds raised in captivity within the scope of the criminal provisions of this law must be found in reading the word “migratory” as intended to mean every bird, in the wild or any other circumstance or situation, so long as it is a member of the species or subspecies listed in one of the conventions. I concede there is logic to the approach of the majority opinion: The treaties and Act speak of “migratory” birds, and use the term “wild” only in reference to ducks and pigeons. The list of protected birds is stated in families: Anatidae or waterfowl, gruidae or cranes, bobolinks, auks, etc. The words of the Act are seemingly all-inclusive, “except as permitted by regulations ... it shall be unlawful ... to pursue, hunt, take, capture, kill, . . . possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase . . . any migratory bird, [or] any part, nest, or egg of any such bird, . . . included in the terms of the conventions . . . ” There is also a certain logic that since it is impossible in most cases to determine whether the bird in the hunter’s bag is one raised in captivity or taken from the wild, the difficulties of administration of the law require an extension of power to birds raised in captivity.
But I believe that Congress did not intend such an expansive exercise of power by the Secretary of Agriculture (now Interior). Webster’s Third New International Dictionary (1976) defines migratory as “making a migration: moving habitually or occasionally from one region or climate to another.” If the word has a plain meaning it would seem to be that “migratory” birds are those which in fact migrate. In my view, however, the term and its use in this legislation is ambiguous and a look to the legislative history is proper. From the debates in Congress I believe that body, at least in 1918, considered that the Act was intended to deal only with birds which in fact migrate. Representative Temple (a member of the House Foreign Affairs Committee, sponsoring the bill) in debate made the following observation:
The birds dealt with are of three classes — migratory game birds, migratory insectivorous birds, and migratory non-game birds. These nest in one place and live a part of the year in another place. They cross the international boundary line, and if they are to be protected at all it requires international action to do it.
56 Cong.Rec. 7369 (1918).
Representative Hamilton of Michigan, (draftsman of the Section 12 amendment discussed below) stated, “May I suggest to the gentleman it does not mean migratory birds in the broad sense, but migratory birds covered by the language of the treaty. I think the distinction ought to be made all the way through.” Id. at 7359. Representative Anthony referred to the laws for the *498protection of “migratory wild fowl.” Id. at 7360. Representative Raker read into the record an unidentified statement referring to the treaty for the protection of “migratory wild fowl” being negotiated between the United States and Canada. Id. at 7370. There are more than 50 uses of the word “wild” in the House debates upon the bill.
The majority opinion considers that the failure of the Act to deal expressly with captive birds is supportive of its view; but there is equal logic to the opposite conclusion. If the Act was to apply only to wild birds why would it treat captive birds in any manner? The Act did treat one class of captive bird, “game” birds. That section was added during the House debates. As finally approved it read:
SEC. 12. Nothing in this Act 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.
40 Stat. 755, 757 (1918). The section survives to this day in nearly the same form. 16 U.S.C. § 711.
While that provision is limited to game birds the legislative history supports the view that it was reflective of the general attitude, not simply a narrowly carved out exception to a broad grant of power. There was much emphasis in the debates upon increasing the supply of wild life for hunting, food and protection of farm crops. When Representative Hamilton offered the new Section 12 his version read, “That one of the objects of this Act is to foster the breeding of migratory game birds on farms and preserves for the purpose of increasing the food supply.” 56 Cong.Rec. 7459 (1918). On this amendment the entire discussion was as follows:
Mr. HAMILTON of Michigan. Mr. Chairman, I offer this amendment to establish beyond all question that one of the purposes of this bill is to encourage the breeding of game birds on preserves and farms. I have been assured by the chairman of the committee that that is the purpose of the bill, and therefore I desire to have the amendment incorporated.
Mr. FLOOD. Mr. Chairman, I think the amendment is a good one, and I would like to see it adopted.
The CHAIRMAN. The question is on agreeing to the amendment.
The question was taken, and the amendment was agreed to.
Id.
This addition then went to the Senate where it was noted by Senator Lodge, and discussed as follows:
Mr. LODGE . . .
That is not statutory language or the ordinary way of legislating. A statute is supposed to explain itself; and to put in “one of the objects of this act is to foster the breeding of migratory game birds on farms and preserves for the purpose of increasing the food supply” — no doubt that is an object of the act; no doubt it will have that effect if properly administered; but surely that is not the way to frame a statute. It seems to me that it ought to go back to conference.
I have no objection to the amendments, but I think they ought to be properly worded and put in suitable legislative language.,
Mr. SMITH of Arizona. Mr. President, I have had some experience with this bill. It was debated from four to six months, it strikes me, in one House or the other— principally in this. I do not see any necessity for the statement in the bill to which the Senator from Massachusetts has made objection. I do not see any harm in it, unless some might feel that a sort of an assault would be made on Congress for the lack of a proper use of phraseology. I did not care whether or not it said “that the object of this act is to foster the breeding of migratory game birds on farms,” and so forth. The act itself would settle that question, whatever Congress may declare about it.
At the suggestion of those who think that these minor matters ought to be corrected I move that the Senate disagree to the House amendments and request a *499conference, and that the Chair appoint the conferees.
Id. at 7476.
Senators Lodge and Smith, and Representative Flood were conferees on the bill. The conference report retained the section with the slight revision in language noted in the final version quoted above. That report stated:
The Senate receded from its disagreement to amendment No. 4 with an amendment. The amendment No. 4 was a new section and stated that one of the objects of the bill was to foster the breeding of migratory game birds for food purposes. The amendment agreed upon is a new section providing that nothing in this act shall be construed to prevent the breeding of migratory game birds for food purposes.
56 Cong.Rec. 8016 (1918). See Id. 8430 (1918).
Also supporting this interpretation is the 1936 convention with Mexico which ultimately protected the family of birds involved in the instant case.
The introductory language in that treaty is as follows:
Whereas, some of the birds denominated migratory, in their movements cross the United States of America and the United Mexican States, in which countries they live temporarily;
Whereas it is right and proper to protect the said migratory birds, whatever may be their origin, in the United States of America and the United Mexican States, in order that the species may not be exterminated;
And again in Article I:
In order that the species may not be exterminated, the high contracting parties declare that it is right and proper to protect birds denominated as migratory, whatever may be their origin, which in their movements live temporarily in the United States of America and the United Mexican States, by means of adequate methods which will permit, in so far as the respective high contracting parties may see fit, the utilization of said birds rationally for purposes of sport, food, commerce and industry.
And Article II:
The high contracting parties agree to establish laws, regulations and provisions to satisfy the need set forth in the preceding Article, including:
A) The establishment of close seasons, except when proceeding, with appropriate authorization, from private game farms or when used for scientific purposes, for propagation or for museums.
E) The prohibition of the killing of migratory insectivorous birds, except when they become injurious to agriculture and constitute plagues, as well as when they come from reserves or game farms: provided however that such birds may be captured alive and used in conformity with the laws of each contracting country.
50 Stat. 1311. [Emphasis supplied.]
I think it is also quite significant that no attempt was made to extend the regulations to birds raised in captivity until the 1960’s, and it was not done until 1966, some 48 years after the Migratory Bird Act was passed. Surely this delay is persuasive that the general understanding was that wild birds only were the object of the convention. It is to be noted that 16 U.S.C. § 701, containing what is left of a 1900 act, refers to “game birds and other wild birds” another indication of the thinking in that era, that there was likely no significance in the fact “wild” was not used as an adjective with “migratory birds.” The arguments and opinion in Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1925), indicate that the parties and the Supreme Court thought the Act covered wild birds only. See also, Koop v. United States, 296 F.2d 53, 59 (8th Cir. 1961).1
*500It is possible to argue, of course, that since the Migratory Bird Law was amended in 1974, Congress implicitly approved of the interpretation by the Secretary of Interior in the 1966 regulation. Cf. Provost v. United States, 269 U.S. 443, 46 S.Ct. 152, 70 L.Ed. 352 (1926). But there is no indication in the legislative history of the 1974 amendments that the legislators knew of that regulation change. The fact the instant case is the first to arise under the 1966 regulation is a strong indication this is not well known. The game farm provisions were left unchanged. The exclusion from the prohibitions quoted above from the treaty with Mexico, and similar provisions in the convention with Japan in 1972, favoring birds raised on game farms and used for propagative purposes, tend to support my construction of the Act.
Several other considerations also compel me to conclude we ought not allow this crime by regulation. In 1960 amendments to the Migratory Bird Act the penalties were substantially increased. Sale of a covered bird became a felony, punishable by a fine of up to $2,000 and imprisonment for not more than two years. At numerous times during the House debates in 1918 the delegation of authority to promulgate regulations were referenced or attacked. At almost each juncture the delegation was justified on grounds the crime would only be a misdemeanor. Thus, for example, Representative Flood, floor manager for the bill, engaged in an exchange with Representative Graham as follows:
Mr. GRAHAM . . .
Many days, months, or perhaps a year may have passed before these regulations which have been promulgated will appear in these published Statutes at Large. There is no way for the public to find out about these things, and that is the principal trouble with this sort of legislation. I say to you here now, that I stand here ready to insist upon or to favor in every way that I can, regulations for the protection of our wild life and the conservation of our bird life, but they ought to be statutory law, law that will apply to the whole country, and laws that you and I helped make, and about which we can tell our constituents. [Applause.]
Mr. FLOOD. Mr. Chairman, I do not think the suggestions made by the gentleman from Illinois [Mr. GRAHAM] that this is a very severe penalty is tenable. The maximum fine can not be but $500 and the maximum imprisonment can not be for more than six months. The court could fine $1 and imprison for one day. It is idle, therefore, to complain of the severity of the penalty.
56 Cong.Rec. 7452 (1918). See also, Id. 7440, 7441, 7444, 7453.
Also relevant to me is that historically the law has treated wild animals, ferae naturae, which were free in nature differently from the same animals in captivity or raised in captivity. When free in nature they are considered to belong to no one until reduced to possession. But once reduced to possession the possessor has a property right until escape, and even thereafter if the animal has the habit of periodic return, animus revertendi. Arnold, The Law of Possession Governing The Acquisition of Animals Ferae Naturae, 55 Am.L. Rev. 393 (1921), in Fryer, Readings on Personal Property 55 (3d ed. 1938). In more recent times some courts have modified the law to hold ownership is retained in non-domestic animals raised in captivity after escape even where there is no animus rever-tendi. See E. A. Stephens & Co. v. Albers, 81 Colo. 488, 256 P. 15 (1927); Brown On Personal Property § 10 (2d ed. 1955). These distinctions recognized since early times certainly lend credence to the view that Congress may have intended a difference between wild birds and those raised in captivity.
Most importantly, I cannot see how application of the penalties of the Migratory Bird Act to the situation at issue here promotes any aim of that law. The stated *501purposes of the treaties and the Act are to preserve and increase the supply of these wild life. 16 U.S.C. § 711 says it directly as to game birds bred on farms and preserves.
Today the whooping crane would be nearer extinction had not some of the birds been hatched in captivity. Where would our supply of buffalo be if landowners had not undertaken to raise some in private managed herds, selling to others who did the same?
Prohibitions in the statute that it is unlawful “to pursue, hunt, take, capture, kill . possess” have no real application to birds already lawfully in possession and their raised-in-captivity offspring. The injunction against “offer for sale, sell, offer to barter, barter, offer to purchase, purchase” have fully understandable and laudatory meanings where applied to wild birds. Without them there would be increases in the slaughter and capture of wild birds. But in the context of birds lawfully possessed and being raised in captivity these prohibitions can only decrease the numbers and discourage this praiseworthy activity.
I do not say the Secretary may not adopt regulations which will affect those who raise captive birds, if necessary to protect the wild birds. But like the court in Allard v. Andrus, No. 75-W-1000 (D.Colo., filed June 7,1978), I believe there must be a way other than absolute prohibition of sale.
It might be argued that the sparrow hawks here involved, as falcons, are birds of prey and hence their increase has the effect of decreasing the supply of other birds. The answer is that the treaty with Mexico placed them on the list, where the object is to protect them and to increase their numbers.
Here we have the manager of the research animal laboratory at Brigham Young University, an expert on these birds, sentenced to prison for IV2 years on each of three counts (fortunately with concurrent sentences) for selling sparrow hawks he raised himself. At the time he lawfully acquired the ancestors to the birds sold, the birds were not covered by any national act or treaty. No adverse effect upon the migratory bird population of the world is observable from his activities. The regulations themselves exempt state and municipal game departments, public museums, zoological parks and scientific or educational institutions from the prohibition against sales of these birds. 50 C.F.R. § 21.12 (1976). It would seem that through bills of sale, banding, registration or other means, defendant’s birds could always be identified as to their source and origin.
The normally applied rule for criminal statutes is for strict construction in favor of an accused. This law was passed in 1918. Its only reference to captive birds is to insure that game bird breeding is to be encouraged and no prohibition upon sale allowed. Forty-eight years after the law’s enactment, and after penalties were increased to make sale of protected birds a felony, the act was extended, by regulation, to birds raised in captivity. The prohibition applies discriminatorily against this private individual, as there is given an exemption to public zoos and other institutions.
I would hold the regulation invalid, as beyond the power intended to be delegated by Congress, and inconsistent with the objectives of the conventions and the Migratory Bird Act.
. “It is common knowledge that ducks, and particularly mallard ducks, lend themselves to being tamed or domesticated and that ducks generally found in most farmyards trace their *500ancestry back to the wild and untamed ducks with whose protection and care the Migratory Bird Treaties and regulations were concerned. Concededly, however, the law was not meant for, nor may it regulate or control the use of, such tamed or domesticated ducks.” 296 F.2d 59.