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August 16, 1989

STATE OF ILLINOIS, et al., Defendants

Milton I. Shadur, United States District Judge.

The opinion of the court was delivered by: SHADUR



 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.


 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 relationship to improving hunting, shooting or fishing," such as:


1. funds diverted from the Division of Natural Resources to the Division of Natural Heritage (para. 9a);


2. funds used to purchase a Frank Lloyd Wright home in Springfield, Illinois (para. 9b); and


3. over $ 300,000 used to fund a ranch for prairie chickens -- a non-huntable species in Illinois (para. 9g).

 Complaint para. 13 expresses plaintiffs' belief that Illinois has improperly diverted over $ 10 million in federal funds intended for wildlife restoration and another $ 30 million in Illinois license revenues.

 Lack of a Private Right of Action

 Because neither the Act's language nor its legislative history reflects a congressional intent to allow private rights of action, this opinion can eschew anything other than a brief footnote analysis of defendants' contention that this action is barred by the Eleventh Amendment, *fn8" concentrating instead on the dispositive private-right-of-action issue. Both sets of litigants have missed the mark completely on the latter score. Although defendants do mention "private right of action" in a single sentence of their opening memorandum (D. Mem. 3-4), they attach it to the wrong statute -- and even then they fail entirely to cite (much less discuss) the definitive Supreme Court case law in this area: Cort v. Ash, 422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975) and its progeny. And plaintiffs' response (P. Mem. 3-6) is even farther off the mark. Even though discussion of the parties' submissions thus really adds nothing to the analysis, a brief detour may be in order simply to identify the wrongheaded arguments they have made.

 As already stated, D. Mem. 3-4 devotes just one sentence to denying the existence of a private right of action. It cites two cases for the really irrelevant proposition that no private right of action exists to enforce the Fish and Wildlife Coordination Act ("Coordination Act"), 16 U.S.C. §§ 661-666c To be sure, several courts have held no private right exists to enforce that statute (see, e.g., Missouri Coalition for the Environment v. Corps of Engineers of the United States Army, 678 F. Supp. 790, 803 (E.D. Mo. 1988) and cases cited there). But plaintiffs have not sued under that statute at all!! *fn9"

 Plaintiffs are equally off base, though in a different direction. They mistake the wholly different question of their standing to sue (a status defendants have not challenged at all) for the real issue of whether any private party can bring an action under the Act. Of course, once the potential of a private cause of action has been established, a specific putative plaintiff must bring himself, herself or itself within the class that is entitled to bring such actions. But P. Mem. 3-6 has no business confronting that second-stage hurdle until plaintiffs have spoken (as they have not) to the first-level question of whether any private right of action exists to enforce the Act.

 So much then for the litigants' submissions (or nonsubmissions). It is time to analyze the real issue.

 What may be most notable about the Act (like Sherlock Holmes' reference to the dog that did not bark in the night) is the nearly complete absence of any case law discussing it. U.S.C.A. (both in its bound volume and in the 1989 pocket part) identifies only one case arising under the Act: Udall v. Wisconsin, 113 U.S. App. D.C. 183, 306 F.2d 790 (D.C. Cir. 1962), analyzing the term "paid hunting-license holders." And in the course of its discussion of the Act, Bean at 220 confirms the paucity of such case law:


Given the duration and magnitude of the Pittman-Robertson program and the widely divergent views of those interested in its administration, it is striking how little litigation there has been concerning it.

 Unquestionably no express cause of action is conferred by the Act. That leaves plaintiffs in the difficult legal position of having to establish an implied right of action. On that subject West Allis Memorial Hospital, Inc. v. Bowen, 852 F.2d 251, 254 (7th Cir. 1988) (citation omitted) has said succinctly:


A strong presumption exists against the creation of such implied rights of action

 West Allis echoes the increasingly restrictive reading the Supreme Court has given to implied private actions -- a much more demanding standard than Cort v. Ash was initially thought to have established. As King v. Gibbs, 876 F.2d 1275, 1280-81 (7th Cir. 1989) (emphasis in original) has explained:


The Supreme Court, in Cort v. Ash, set out a four-part test to determine whether a private right of action should be implied from a statute:


First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," . . .? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?

 422 U.S. at 78 (citations omitted).


In its recent pronouncements, the Court has reaffirmed the use of the Cort test but has also made it clear that the principal focus is on the second of the Cort factors -- whether the legislature intended to create a private cause of action. See Cannon v. University of Chicago, 441 U.S. 677, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979); Touche Ross & Co. v. Redington, 422 U.S. 560, 568, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979). The first and third of the Cort factors are aids in determining that intent, Touche Ross, 422 U.S. at 575-76; see also P. Bator, D. Meltzer, P. Mishkin, D. Shapiro The Federal Courts and the Federal System, 946 (1988), and, by negative implication, it is unclear whether the fourth Cort factor -- whether the cause of action is generally thought of as a matter of state concern -- has any continuing significance. But see Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 393, 72 L. Ed. 2d 182, 102 S. Ct. 1825 (1982) (Court noted that fourth Cort factor favored implying private right of action under a provision of the Commodities Exchange Act.). In sum, unless a congressional intent to create the right of action "can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist." Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 94, 67 L. Ed. 2d 750, 101 S. Ct. 1571 (1981)

 It is hardly surprising (given the lack of an express remedy) that nothing in the Act's language suggests a private right of action. And the legislative history (what little there is) is completely silent on the issue -- it makes no mention of lawsuits of any kind. Indeed, the legislative history reflects only that the Act was designed to provide "grants-in-aid to the States for conservation purposes" (H.R. Rep. No. 1572, 75th Cong., 1st Sess. 2 (1937)). Congress reiterated that point in the course of its 1970 amendment to the Act, stating in S. Rep. No. 91-1289, 91st Cong., 2d Sess., reprinted in 1970 U.S. Code Cong. & Ad. News 4353, 4354:


The purpose of the legislation is to encourage comprehensive planning by the State fish and game departments, to increase the revenues available to the States for wildlife restoration projects, and to provide funds to be used by the States to carry out programs supporting hunter safety.

 If in response to such encouragement a State elects to participate (as it is not compelled to do), it must of course comply with the Act's provisions. But the only statutorily-provided consequence of any State's failure to comply is that Secretary must withhold any future federal funds until the diverted funds are replaced (Section 669e(a)). *fn10" That limited statutory sanction itself creates a strong negative inference: It strongly suggests that a nonstatutory remedy such as a private enforcement action does not exist. Indeed, as n.10 reflects, the Act does not even by its terms confer a right of action in Secretary to compel the restoration of any diverted funds (as contrasted with adopting the one-free-bite approach of barring a State's future participation so long as there are unreplaced funds of that nature).

 In sum, plaintiffs must lose here -- not so much because of any express showing that Congress did not intend to create a private action, but rather because nothing even hints affirmatively at the existence of any congressional intent to do so. No explicit consideration was given by Congress to the private-action question (as is often true of statutes passed well before the recent developments in the law of private actions). But such silence dooms plaintiffs here. They have tendered nothing to overcome West Allis ' "strong presumption" against such implied rights of action. That ends the inquiry. *fn11"


 Nothing in the language of the Act, its legislative history or its structure suggests Congress intended to create a private right of action for its enforcement. Accordingly this action must be and is dismissed for lack of subject matter jurisdiction. *fn12"

 Date: August 16, 1989

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