Andrus v. Allard

Supreme Court of the United States · 1979 · Property

PropertytakingsFifth Amendmentbundle of rightsloss of profitswildlife regulationsale banpre-existing artifacts

Facts

Federal regulations under the Eagle Protection Act and the Migratory Bird Treaty Act allowed possession and transportation of certain bird parts lawfully acquired before federal protection began, but prohibited their sale, purchase, barter, import, and export. Appellees traded in Indian artifacts, some of which contained feathers from currently protected birds, although the artifacts predated the statutes' protections. After two appellees were prosecuted for selling such artifacts, appellees challenged the regulations and argued either that the statutes did not reach pre-existing artifacts or, if they did, that the Fifth Amendment barred the prohibition on sale. The challenged regulations did not require surrender of the artifacts and still allowed possession and transportation.

Issue

Do the Eagle Protection Act and the Migratory Bird Treaty Act authorize the Secretary of the Interior to prohibit commercial transactions in bird parts lawfully taken before the statutes became applicable? If so, does barring the sale of such pre-existing artifacts effect an uncompensated taking in violation of the Fifth Amendment?

Rule

A broad statutory prohibition on selling protected wildlife parts may be applied to items lawfully taken before federal protection began when the statute's text, structure, and purpose support that reading and no exemption for sale is expressly provided. For takings purposes, the denial of one traditional property right, such as sale, does not by itself constitute a taking when the owner retains other significant rights in the property, including possession and transportation, and the regulation involves no physical invasion or surrender.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Santa Fe, Lena Ortiz owns a collection of antique ceremonial masks containing feathers from a bird species now federally protected. A federal regulation allows her to keep, transport, donate, and leave the masks by will, but forbids selling or bartering them.

If Lena argues that the regulation effects a taking because it destroys the masks' market value, what is the strongest answer?

Explanation. The majority held that banning sale of lawfully acquired protected bird artifacts was not a taking where owners retained important sticks in the bundle of rights, including possession and transportation, and the government neither physically invaded nor required surrender of the property. Loss of the most profitable use or market value alone was not dispositive.