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ILLINOIS STATE RIFLE ASSN. v. ILLINOIS

August 16, 1989

ILLINOIS STATE RIFLE ASSOCIATION, et al., Plaintiffs,
v.
STATE OF ILLINOIS, et al., Defendants


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Illinois State Rifle Association ("Association"), Safari Club International ("Club"), Charles Wilt III ("Wilt") and Patricia Valentino ("Valentino") *fn1" have sued the State of Illinois and its Department of Conversation Director Mark Frech ("Frech"), claiming defendants have violated the Pittman-Robertson Wildlife Restoration Act ("Act"), *fn2" 16 U.S.C. §§ 669-669i. *fn3" Defendants have responded with a motion to dismiss under Fed R. Civ. P. ("Rule") 12(b)(6) on dual grounds -- either of which would suffice for dismissal: *fn4"

 
1. There is no private right of action to enforce the Act.
 
2. This action is barred by the Eleventh Amendment.

 For the first of those reasons, as discussed in this memorandum opinion and order, not only the Complaint but also the action itself are dismissed.

 Background5

 Enacted in 1937, the Act is the principal mechanism for providing federal assistance to the States for wildlife restoration projects. Under Section 669b all tax revenues from the sale of bows and arrows (26 U.S.C. § 4161(b)) as well as pistols, revolvers, firearms, shells and cartridges (26 U.S.C. § 4181) are earmarked for a special wildlife restoration fund. After subtracting expenses (Section 669c), the Secretary of the Interior ("Secretary") apportions the funds to each State participating in the program (Section 669d). *fn6"

 As with almost all federal programs, the money comes with strings attached. States can avail themselves of the benefits of the Act only by submitting comprehensive fish and wildlife resource management plans or wildlife-restoration projects (Section 669e(a)). Each State's proposals are subject to approval by the Secretary (id.).

 Even more importantly for present purposes, no participating State may spend any funds apportioned to it (Section 669):

 
until its legislature, or other State agency authorized by the State constitution to make laws governing the conservation of wildlife, shall have assented to the provisions of this chapter and shall have passed laws for the conservation of wildlife which shall include a prohibition against the diversion of license fees paid by hunters for any other purpose than the administration of said State fish and game department. . . . The Secretary of the Interior and the State fish and game department of each State accepting the benefits of this chapter, shall agree upon the wildlife-restoration projects to be aided in such State under the terms of this chapter and all projects shall conform to the standards fixed by the Secretary of the Interior.

 Consequently Section 669e(a) requires that any funds appropriated by Secretary for a wildlife plan or project be applied only to that plan or project. If funds are diverted, they must be replaced before the State may participate in further apportionment. *fn7"

 For the past 50 years Illinois has expressly assented to the provisions of the Act (Ill. Rev. Stat. ch. 61, para. 133). It also expressly prohibits the diversion of funds collected from state-imposed fees on hunting licenses (id. para. 134). Illinois is therefore eligible for, and in fact does receive, federal funds for its wildlife projects.

 Complaint para. 9 alleges, however, that Illinois has "diverted funds paid by plaintiffs and other such persons [putative class members] to purposes and projects that are not allowed under said act and that have no ...


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