ing at least every three years. Beyond that, the only substantive standard imposed by the statute requires that comprehensive fish and wildlife management plans "insure the perpetuation of these resources for the economic, scientific, and recreational enrichment of the people. "29/ No procedural requirement that the public be permitted to participate in the development of the comprehensive plan is imposed.30/ The most recent attempted amendment to the Pittman-Robertson Act came in 1976, when Congress considered a bill which would have expanded the PittmanRobertson tax base by imposing an 11 percent tax on "component parts" of ammunition, including cartridge cases, primers, bullets, wads, and powders, and by eliminating the discretion of the states to use the special "fund within the fund" previously described for traditional wildlife restoration purposes rather than for hunter safety programs. 31/ The latter feature of the proposed amendment stirred considerable controversy. Some of the opponents to the measure 29/ 16 U.S.C. §669e(a) (1) (1970). Compare the somewhat more detailed requirements for "comprehensive plans" pertaining to wildlife conservation on federal lands. See Chapter Six supra at text accompanying notes 103-15. Query what incentive there is for electing the comprehensive plan option over the traditional individual project approach? Congress apparently thought that the comprehensive plan option would be attractive to states because it would enable them to utilize their federal aid funds more efficiently. See S. Rep. No. 1289, 91st Cong., 2d Sess. 1970. However, the federal matching grant share is the same 75 percent, no matter which option is chosen. Accordingly, to date only fourteen states have even begun the initial stages of comprehensive planning. 30/ Query whether the requirement that comprehensive plans be based on the "desires and needs of the people," when coupled with the Secretary's authority to make rules and regulations to carry out the Act, 16 U.S.C. $6691(1970), authorizes (or even compels) him to require public participation in the development of such plans? 31/ H.R. 9067, 94th Cong., 1st Sess. (1975). objected to mandating that any part of the PittmanRobertson fund be used for purposes not directly related to wildlife conservation; proponents contended that anticipated revenues from the measure would result in a net increase in the amount of money actually being spent on wildlife restoration projects. The failure of Congress to resolve these differences illustrates the volatility of the tug of war between various interests competing for Pittman-Robertson funds. Given the duration and magnitude of the PittmanRobertson program, and the widely divergent views of those interested in its administration, it is striking how little litigation there has been concerning it. In fact, the Secretary's discretion in approving or disapproving a particular project application has never been challenged in any reported case. That issue was touched on, however, in an action which pitted three states against the Secretary of the Interior with respect to the meaning of the term "paid hunting-license holders" as used in the Act's apportionment formula. In that action, Udall v. Wisconsin, the states, all of which issued multiple types of hunting licenses rather than a single general hunting license, contended that the term really meant the number of licenses rather than the number of individuals holding licenses.32/ The states were aided in their claim, despite the literal wording of the statute, by a somewhat conflicting legislative history and by the fact that until 1959, the Secretary had in fact administered the Act as though the term "license-holders" meant "licenses."33/ The Court of Appeals rejected these arguments, however, 32/ 306 F.2d 790 (D.C. Cir. 1962), cert. denied, 371 U.S. 969 (1963). and held "that the Act means what it says and that the Secretary of the Interior, albeit late, has correctly applied it."34/ In the course of its ruling, the court suggested in dictum that there may be a distinction between a court's power to review the Secretary's exercise of his initial apportionment function and of his subsequent function of approving or disapproving individual applications for funds. That is, while the court viewed the former function as "almost a purely mechanical one" involving no discretion on the part of the Secretary, for which judicial review by mandamus would be appropriate, it offered the following observation on his latter function in a footnote: This is not to say that the The validity of the view tentatively expressed in the quoted footnote remains untested. Yet, for the reasons that follow, it would appear that the court's dictum was not adequately considered and that it is, at best, greatly overstated. First, other federal statutes impose substantive standards that restrict the Secretary's discretion under the Pittman-Robertson Act. The court's dictum can not mean that in approving or disapproving a particular application under the Pittman-Robertson Act, the Secretary is relieved from complying with duties imposed by other acts. An illuminating case is Cameron Parish Police Jury v. Hickel.36/ That action involved the Refuge Revenue Sharing Act, which directs that certain of the receipts from the operation of national wildlife refuges be paid to the counties in which they are located for the benefit of public schools and roads.37/ Although the Secretary's duty to apportion receipts among eligible counties is presumably non-discretionary, the intervening Civil Rights Act of 1964, by prohibiting federal financial assistance without an assurance of non-discrimination, imposed a further substantive duty on the Secretary's actual payment of funds to particular counties. The Cameron Parish case clearly recognized that further duty as the basis for judicial review of the Secretary's actions. By a parity of reasoning, the same substantive restrictions imposed by the Civil Rights Act must serve as a basis for judicial review of the Secretary's actions under the Pittman-Robertson Act. Beyond that, however, is the question of judicial reviewability under other statutes imposing other substantive duties, such as the National Environmental Policy Act and the Endangered Species Act of 1973. Although administrative regulations of the Fish and Wildlife Service recognize the applicability of NEPA to the PittmanRobertson program, 38/ there has apparently been only one impact statement prepared with respect to an in 36/ 37/ 38/ 302 F. Supp. 689 (W.D. La. 1969). 16 U.S.C. $715s (1970), as amended by Act of Dec. 3, 1974, Pub. L. No. 93-509, $4, 88 Stat. 1603. For a discussion of the Refuge Revenue Sharing Act, see Chapter Six supra at text accompanying notes 36-37. 50 C.F.R. $80.34 (1975). The Fish and Wildlife Service routinely requires states to submit with each project application an "environmental assessment report" which is to contain the general information found in an environmental impact statement. See Department of Interior, Fish and Wildlife Service, Federal Aid Manual $4.15 (1973). dividual restoration project39/ and none with respect to state comprehensive plan proposals; nor has a "programmatic" statement been prepared with respect to the program as a whole. 40/ The issue of the Secretary's failure to prepare an impact statement before granting Pittman-Robertson moneys was raised in Defenders of Wildlife v. Alaska Department of Fish and Game, an action stemming from an experimental wolf control program in Alaska.41/ There the Fish and Wildlife Service suspended PittmanRobertson payments in support of the program pending further review of whether an impact statement was required.42/ Before completion of that review, however, Alaska rescinded its request for federal financial participation, and the case was ultimately decided on other issues. Yet another case which never fully materialized raised the issue of potential conflict between the Secretary's administration of the Pittman-Robertson Act and the Endangered Species Act. In June, 1976, the Sierra Club Legal Defense Fund gave formal notice to the Secretary of the Interior that his continued funding under the Pittman-Robertson Act of an Hawaiian program to maintain populations of feral sheep and goats on Mauna Kea jeopardized the continued existence of an 39/ 40/ 41/ 42/ Department of the Interior, Fish and Wildlife Service, Fish- As of September, 1976, the Fish and Wildlife Service was re- Telegram from Lynn Greenwalt, Director, Fish and Wildlife |