Wildlife management

            This article examines the federal government’s steadily increasing role in wildlife management, which began with the creation of the National Wildlife Refuge System (NWRS) in the 1920s and finally culminated in the Endangered Species Act (ESA) of 1973.  While the early refuge system focused on migratory bird species with economic and outdoor recreational values, it always included the protection of severely over-hunted species like the trumpeter swan and whooping crane, and Congress gradually expanded its purview to an ecology-based protection of other threatened and endangered species.  Thus, rather than being an exclusive creation of the U.S. environmental movement, the ESA reflected the steady build-up of popular interest and bureaucratic capital directed toward the protection of biological species since the Progressive Era.  By studying the evolution of the NWRS from 1920 to 1973, this article recognizes the significance of continual and increasing federal efforts on behalf of wildlife, whereas many environmental movement histories posit or imply a disconnect between the ESA and earlier legislative initiatives.

In the period examined by this article, changes in legislation and administrative practice transformed the NWRS from a manager of migratory waterfowl to protector of endangered species.  In broader terms, this evolution provides a case study for the shift in American natural resources policy from an anthropocentric concept of utilitarian conservation to an ecology-derived ethic of environmentalism.  While historians have repeatedly examined this important shift in ideological terms, this article will show how the NWRS’s changing emphasis from game management to the protection of biological diversity emerged from the American policy process. 

Created in the 1920s and 1930s to ensure a future for American waterfowl hunting, the NWRS began emphasizing the protection of threatened and endangered wildlife species at least as early as the 1950s.  A series of congressional acts refining the mission of the NWRS culminated in the ESA, now the best-known responsibility of the NWRS and its parent agency, the U.S. Fish & Wildlife Service (FWS), Department of the Interior (DOI).  Today, the National Wildlife Refuge System consists of over five hundred administrative units and more than ninety-three million acres across all fifty states and several U.S. territories.  The NWRS is the federal government’s third largest system of conservation-managed lands, and it provides the core of federal efforts on behalf of both migratory birds and endangered species.^[1]  The FWS holds a legislative mandate for continued refuge land acquisition, while federal taxes on hunting and other outdoor recreation activities provide significant sources of annual, earmarked funding for the system.  The refuge system’s roots in game management have not been abandoned, but enveloped within the newer emphasis on the protection of endangered species.

            Historians, who have focused either on the conservation movement preceding it, or the environmental movement following it, have neglected the critical period of NWRS development covered by this article.  No previous historian has produced a sustained analysis of the NWRS, America’s key institution in the protection of wildlife, and arguably the federal government’s natural resources agency most transformed by the shift from conservation to environmentalism.  By examining the critical period of NWRS development from 1920 to 1973, this article fills a significant historiographical gap.  Following the outline of major legislative initiatives, this study traces the evolution of the system in both the legislative and policy-making arenas, examining the interplay of legislators and bureaucrats.  It also considers the roles of interest groups lobbying for and against refuge-related initiatives, including conservationists (National Audubon Society, National Wildlife Federation, and Izaak Walton League of America), scientists (American Ornithologists’ Union), other government agencies (International Association of Fish and Wildlife Agencies), and business-affiliated groups (American Game Association and Wildlife Management Institute).  This article bridges the historical gap between the conservation and environmental movements, and shows the continuities and transformations of NWRS priorities across political eras from the Republican New Era of the 1920s to the Great Society of the 1960s and the environmental decade of the 1970s.

            The conservation movement is a well-known aspect American history and a staple of textbook accounts of the early twentieth century.  Personified by Theodore Roosevelt, John Muir, and Gifford Pinchot, the typical account portrays the conservation movement as the progressive response to the closing of the American frontier and the waste of natural resources, particularly forestry products, associated with a fast-growing, urban-industrial economy.  Samuel Hays’ now-classic text on the era argued that American natural resource development became dominated by the “gospel of efficiency,” where scientific experts would rationally exploit the national wealth with a minimum of waste.  Focusing on the politics of the U.S. Forest Service and Bureau of Reclamation, Hays paid little attention to the issue of wildlife protection during the conservation movement, and his only mention of migratory bird refuges inaccurately dated their authorization to 1913.[2] 

            While most historians have followed Hays’ lead by restricting conservation to debates over forestry, mining, and hydroelectricity, this article places wildlife squarely within the conservation movement, building on a largely separate literature of American wildlife conservation history.  The earliest histories of wildlife conservation efforts were written by participants, many of whom had been involved with wildlife conservation efforts since the late nineteenth century, when the near extinction of the American bison pointed up the fragility of wildlife populations under severe hunting pressure.  William T. Hornaday, long-time director of the Bronx Zoo and founder of both the American Bison Society and Permanent Fund for Wildlife Protection, wrote the most strident and voluminous accounts.  Hornaday urged his readers to recognize the urgent need for new limits on hunting, especially of migratory birds, and continuously predicted the imminent extinction of multiple bird species.[3]  In contrast, former senator and lobbyist Harry B. Hawes stressed the contributions of hunters and fishermen to conservation, while ranting against wildlife-loving “sentimentalists” and providing occasional glimpses at his own involvement in wildlife legislation, in Fish and Game: Now or Never.[4]  Two years later, T. Gilbert Pearson recounted his nearly thirty-year-leadership of the National Association of Audubon Societies, precursor to today’s National Audubon Society, in the informative and valuable, though largely anecdotal, Adventures in Bird Conservation.  Having been charged with over-closeness to arms and ammunition companies and recently forced out of the Audubon presidency, Pearson sometimes seemed more focused on defending his record rather than closely detailing long struggles for wildlife conservation legislation.[5]  Noted waterfowl expert and one-time chairman of the American Committee for International Wild Life Protection, John C. Phillips offered a briefer and alternative insider’s view of many events described by Pearson in his pamphlet history of federal wildlife conservation.[6]  A long-time officer of the American Game Protective Association, William S. Haskell wrote a short and celebratory history of that gun company-backed lobbying group and its causes.[7]  Though differing in viewpoint and possible solutions, all of these writers shared a deep concern with the sharply declining populations of American wildlife, especially migratory birds, in the first third of the twentieth century.

            Retrospective organizational and institutional histories make up the next significant category of work on wildlife conservation.  Usually sponsored by the subject organization, these histories range from self-congratulatory to well-considered scholarship.  James B. Trefethen’s Crusade for Wildlife, which chronicled the elite Boone and Crockett Club founded by Theodore Roosevelt, was one of the earliest examples of such books.[8]  Other examples include Thomas B. Allen’s Guardian of the Wild on the National Wildlife Federation and Frank Graham’s The Audubon Ark for the National Audubon Society.[9]  In A Passion for Birds, Mark V. Barrow, Jr. has centered an excellent account of American ornithology from the mid-nineteenth century to the 1930s on the history of their leading professional society, the American Ornithologists’ Union.[10]  By far, the best such work is Dian O. Belanger’s Managing American Wildlife, which examined the history of the International Association of Fish and Wildlife Agencies, an umbrella organization of federal, state and Canadian wildlife agency officials.  Going well beyond a simple chronological narrative, Belanger produced a well-sourced account of the International Association within the context of the conservation and environmental movements from its founding in 1902 to the 1980s, a clear model for any administrative history.[11] 

            Like organizational histories, biographies have offered more or less limited perspectives on long-term legislative processes.  David L. Lendt’s Ding: The Life of Jay Norwood Darling devoted several chapters to the varied wildlife conservation interests of the nationally syndicated political cartoonist, who served a brief stint as chief of the Biological Survey in the 1930s.  But, much like Darling’s wavering and varied interest in conservation matters, Lendt provides little sustained focus on ongoing events or institutions.  To date, Darling and C. Hart Merriam, whose chieftainship of the Biological Survey and its forerunners (1886-1911) preceded the primary interests of this article, are the only Survey chiefs or Fish and Wildlife Service directors to receive in-depth biographical attention. [12]  Gilbert C. Fite’s biography of leading Senate wildlife conservationist Peter Norbeck (R-SD) devoted a chapter to his battles for conservation in the Senate, yet ignored the equally vital campaigns in the House.[13]  Unfortunately, biographies of other pivotal legislators, including Smith Brookhart (R-IA), Key Pittman (D-NV), and Charles McNary (R-OR), have failed even to mention their strong support of federal wildlife legislation.^[14]  Recently, in his wistful memoir, Henry Reuss, long-time U.S. Representative from Wisconsin, devoted one chapter to “The Environment,” included a very few lines on his role in authorizing the feeding waterfowl from Commodity Credit Corporation grain stocks and the prohibition of USDA drainage subsidies.[15]  Of course, many modern legislators key to wildlife conservation, including Sen. A. Willis Robertson (D-VA) and the two John Dingells (Democratic Representatives from Michigan) have yet to receive scholarly biographical attention.  Harold L. Ickes, Secretary of the Interior under FDR, has been the subject of several biographies, but T. H. Watkins’s Righteous Pilgrim provided the best account of Ickes’ several efforts to transform his agency into a Department of Conservation.  However, like all of the many accounts on this struggle, Watkins’s account is completely dominated by the failed effort to transfer the Forest Service to Interior, with only passing reference to the culminated transfers of the Biological Survey and Bureau of Fisheries.[16]  Recent articles on William T. Hornaday and sometime ally Rosalie Edge, chair of the Emergency Conservation Committee, have detailed the positions of these leading wildlife preservationists, stressing their many disagreements with leaders of the Biological Survey.[17]

            Outside of biographical accounts and organizational histories, the scholarly literature on American wildlife conservation is rather limited, especially for the period preceding the environmental movement.  First published in 1975, John F. Reiger’s American Sportsmen and the Origins of Conservation advanced the still-controversial idea that hunting sportsmen have been the overlooked but key actors in the history of wildlife conservation.  Building in part on Trefethen’s history of the Boone and Crockett Club, Reiger persuasively argued that concerned hunters provided the impetus and public support for the protection of American wildlife in the nineteenth century.  While Reiger carried his study only to 1900, his thesis is quite applicable to later developments regarding wildlife conservation.  In particular, the creation of the American Game Protective and Propagation Association in 1911 and the National Wildlife Federation in 1936 centered on protecting the prerogatives of American sportsmen.  Unfortunately, neither Reiger nor subsequent historians have picked up the gauntlet laid down by American Sportsmen and formulated a sportsmen-centered narrative of wildlife conservation in the twentieth century.  While this article will not focus exclusively or even primarily on the conservation efforts of hunters and sportsmen’s organizations, it will try to highlight their contributions and efforts to a greater degree than previous histories.[18] 

Kurkpatrick Dorsey’s The Dawn of Conservation History detailed the negotiation of three wildlife conservation treaties between the United States and Canada, including the Migratory Bird Treaty of 1916, which together solidified federal government control over migratory birds in both countries.  In a twist on the usual separate treatment of conservation’s utilitarian and preservation components, Dorsey argued that the relative strength of each treaty and accompanying enabling legislation depended on proponents’ success in marshalling public sentiment for conservation behind scientific evidence for further harvest controls.[19]  Examining federal conservation policies and legislation in the Republican-dominated years between 1921 and 1933 and generally serving as a follow-up to Hays’ Conservation and the Gospel of Efficiency, Donald C. Swain’s Federal Conservation Policy devoted a full chapter to wildlife conservation efforts.  While he argued that conservation generally strengthened in the 1920s, Swain found that wildlife conservation suffered from the institutional weakness of the Bureau of Biological Survey, predecessor to the U.S. Fish & Wildlife Service.[20]  While both Dorsey and Swain demonstrated thorough research and persuasive theses, neither devoted much discussion to the subsequent impact of discussed legislation.

A revision and expansion of his earlier work on the Boone and Crockett Club, James Trefethen’s An American Crusade for Wildlife represents the one attempt at a comprehensive history of American wildlife conservation, from the colonial era to the last third of the twentieth century.  However, because of the unforeseen developments and consequences of wildlife conservation since 1975, Trefethen’s analysis is now badly outdated.  Also, while Trefethen displayed more interest in the National Wildlife Refuge System and U.S. Fish & Wildlife Service than most historians of conservation, he apparently did little primary research on the subject, relying on memoirs, press accounts, or secondary sources to create a largely anecdotal history of the refuge system’s creation and, to a lesser extent, its subsequent growth.  The details of the public policy process and its subsequent effects on the refuge system’s institutional development had little effect on Trefethen’s personality-driven narrative, while they will be important aspects of this article project.[21]

            A limited number of historical works have treated federal wildlife legislation as a vital part of connected narratives.  The complicated framework of Thomas R. Dunlap’s Saving America’s Wildlife allowed for some discussion of early federal wildlife legislation.  However, Dunlap’s primary interest was the philosophical shifts among wildlife management practices towards predators rather than the game bird protection emphasized by the federal legislation of the 1920s and 1930s.^[22]  Stephen Fox’s unconventional but substantive blend of a John Muir biography and narrative of American conservation has done the best job to date of integrating wildlife conservation with the broader history of American conservation.  In pointing up the cliquish but influential leadership of wildlife conservation from the 1920s through the 1950s, Fox identified how several limited membership, under-funded conservation groups gained approval for the significant federal wildlife legislation preceding the environmental movement.[23]  The several editions of Michael J. Bean’s The Evolution of National Wildlife Law provide a law school textbook on the legal framework of wildlife conservation, necessarily including the federal agencies that administer the law.  But, Bean’s work is much more concerned with courtroom applications of the law than the political and legislative processes that produced it, which limits its historical value.^[24]

            A pressing need in the historical literature on wildlife conservation is an in-depth treatment of the U.S. Fish and Wildlife Service, the preeminent federal agency in wildlife conservation and one of the four principal federal land management agencies.  Though published in 1929, Jenks Cameron’s Bureau of Biological Survey remains the only full-scale institutional history of the U.S. Fish and Wildlife Service’s principal predecessor.  Examining the Biological Survey’s history from its beginnings as a division of economic ornithology in1885 to full-fledged bureau in the Department of Agriculture at the date of his publication in 1929, Cameron detected a steady shift in the agency’s work from investigative, biological research to applied fieldwork and administrative duties.  Though the Biological Survey’s work with wildlife refuges (then known as national bird reservations) was relatively limited in 1929, their later growth arguably fits within Cameron’s thesis of increasing administrative duties and declining scientific research.[25]

            Later works concerning the U.S. Fish and Wildlife Service have addressed its responsibilities with the NWRS, but tend to provide only a specific policy snapshot rather than the historical account of institutional growth furnished by this article project.  Ira N. Gabrielson, the last chief of the Biological Survey and first director of the Fish & Wildlife Service (following the 1940 merger of the Biological Survey and Bureau of Fisheries), produced Wildlife Refuges during World War II.  Intended for a mass audience, this wide-ranging but intellectually shallow book examined the various types of wildlife refuges in the United States, but provided only anecdotal histories of individual areas.^[26]  Albert M. Day, Gabrielson’s successor as director of the FWS, first published North American Waterfowl in 1949, which provided another account of wildlife conservation intended for a popular audience.  Of greater interest to this article, Day’s revised edition of 1959 accused President Eisenhower of politicizing the Fish & Wildlife Service by replacing career civil servants with political appointees at its highest levels.^[27]  Nathaniel P. Reed and Dennis Drabelle, also former high-ranking FWS officials, produced The United States Fish and Wildlife Service, a readable policy study of the agency’s organization in the early 1980s containing very little historical analysis.[28]

            In contrast to the U.S. Fish and Wildlife Service, the National Park Service, its component National Parks and, to a lesser degree, the Forest Service and Bureau of Land Management (BLM) have been the subject of numerous historical accounts.  Since the 1970s, historians of the environmental movement have scrutinized the history of the National Park Service to explain its role in the recurrent dam-building controversies of the 1960s and 1970s.  Historians from across the ideological spectrum focused on the BLM’s history in the 1980s and 1990s to attack or justify the “sagebrush rebellion” of Western politics during the Reagan administration.[29]  The National Park Service has been particularly supportive of historical research, continually sponsoring administrative histories of individual park units by both agency historians and contractors.[30]  These largely institutional accounts often posit their subject as a significant source of continuity between the conservation movement of the Progressive Era and the environmental movement of the Cold War era.

            The current lack of historical monographs on the FWS has been reflected in its near total omission from recent historical overviews of American environmentalism.  For example, Hal Rothman’s recent and influential work, The Greening of a Nation?, devoted a full chapter to “Institutional Environmentalism: Federal Agencies and their Publics,” which reviewed the National Park Service, Forest Service, Bureau of Land Management, and Bureau of Reclamation, but entirely omitted the Fish & Wildlife Service.  In fact, Rothman’s work did not discuss the FWS even during his consideration of the endangered species acts of 1966, 1969, and 1973 and failed to provide an index listing for it.^[31]  Similarly, the lack of monograph studies on refuges and the Fish & Wildlife Service allowed esteemed environmental historian Samuel P. Hays to mischaracterize appreciation of wetlands as a post-1960 phenomenon, rather than a value institutionalized in the refuge creations of the 1920s and 1930s.^[32]

            The absence of the U.S. Fish & Wildlife Service is also glaring in general political histories and textbooks.  While the National Park Service and Forest Service are often mentioned, if only in passing, the absence of the Fish & Wildlife Service is nearly assured, despite its long-leading role in preserving the “charismatic mega-fauna” that so often symbolized the aims of conservationists and environmentalists.  Notably, even in Ted Steinberg’s new environment-centered and otherwise excellent, general text of American history, the U.S. Fish & Wildlife Service merited only two mentions.[33]

Clearly, a significant gap exists in the current historical literature in regards to the U.S. Fish and Wildlife Service and the important wildlife conservation role of its National Wildlife Refuge System.  While the federal government’s other land management agencies have been the subjects and/or sponsors of considerable scholarship, the U.S. Fish and Wildlife Service has largely escaped scholarly attention.  Unlike the National Park System, the NWRS has also failed to garner significant study.  In turn, the lack of Fish and Wildlife Service-related monographs has meant the neglect of this subject in the syntheses of conservation and environmental history.

            The history of the National Wildlife Refuge System exists within a context of federal government efforts for conservation, and a larger community of interests that supported those efforts.  By 1920, when this article picks up the story, federal government involvement in wildlife conservation dated back about a generation.  In 1885, at the urging of the newly established American Ornithologists’ Union (AOU), Congress created a new section devoted to ornithology within the Department of Agriculture’s Division of Entomology.  Continually prodded by the well-connected AOU, Congress raised the ornithology section to the Division of Economic Ornithology and Mammalogy in 1886, renamed it the Division of Biological Survey in 1896, and expanded it to full bureau status in 1905.  A small, scientific agency, the Biological Survey most visibly employed its ornithologists and mammalogists in expeditions to classify and map the life zones of western U.S. wildlife.[34]  Meanwhile, the destruction of the bison herds of the Great Plains and the passenger pigeon flocks of the Midwest alerted the American public to the dangers of unregulated hunting of wildlife, even while the feather fashions of the millinery industry wreaked havoc on bird species previously considered non-game birds.[35]

            In the opening years of the twentieth century, the federal government took its first steps to actively protect American wildlife, particularly migratory birds.  With the backing of the elite hunter-conservationists of the Boone & Crockett Club, Congress passed the Lacey Act, in 1900.  Named for Rep. John F. Lacey (R-IA), chairman of the House Committee on Public Lands, this act applied the federal government’s commerce clause powers to transactions involving wildlife and required that wild game taken and shipped across state lines be legally taken and possessed in both the state of origin and state of destination.[36]  Directed primarily against plume and meat market hunters, the Lacey Act represented the first federal legislation on behalf of migratory birds.  The Secretary of Agriculture assigned Lacey Act administration to the Bureau of Biological Survey, beginning that agency’s transformation from a strictly scientific agency to a managerial one, though enforcement largely depended on cooperation with other federal and state agencies or the interest of Audubon society members.  Since wide disparities in state laws continued after 1900, the over-hunting of migratory animals greatly alarmed wildlife conservation activists and provoked calls for further federal government action.^[37]

On 14 March 1903, President Theodore Roosevelt created the Pelican Island National Bird Reservation, the first of today’s national wildlife refuges.  According to T. Gilbert Pearson, the Pelican Island reservation resulted from the efforts of several prominent Audubon Society members involved in the struggle to protect Florida’s birds from plume hunters.  When they learned that the federal government owned Pelican Island, they applied to TR for the reservation, which he promptly granted.  As with the Lacey Act, the Biological Survey of the Department of Agriculture received administrative responsibility for Pelican Island, furthering its transformation from a scientific agency to an administrative one.  The Committee on Bird Protection of the American Ornithologists’ Union already employed a warden, Paul Kroegel, for Pelican Island and soon after the refuge’s creation, committee chairman William T. Dutcher arranged for his designation as a federal game warden, although he continued to be paid by the AOU until 1905, when the new National Association of Audubon Societies assumed the cost.[38]  Congress belatedly and implicitly approved TR’s innovation by a law of 28 June 1906, which outlawed the disturbance of birds “on any United States lands which had been set apart as breeding-grounds for birds by law, proclamation, or executive order, except under regulation by the Secretary of Agriculture” [emphasis in original].  Importantly, as custodian of the national bird reservations, the Secretary of Agriculture had the discretion to allow scientific collecting (an important part of contemporary ornithology) or other hunting on the nascent wildlife refuges.  Ultimately, TR designated fifty-one bird reservations from the public domain before leaving office on 4 March 1909.[39]

            The unique problem of over-hunted migratory birds, which crossed multiple state and international lines, provided the opening wedge for a much larger federal role in American wildlife conservation.  Between 1904 and 1912, activists such as William T. Hornaday, director of the New York Zoological Society, and William Dutcher, first president of the National Association of Audubon Societies (precursor to today’s National Audubon Society), convinced sympathetic Congressmen to introduce legislation to give the federal government an active role in regulating and enforcing seasons and bag limits on migratory game.  A one-term congressman and noted wildlife photographer, George Shiras III (R-PA) presented the first legislation for federal control over migratory birds in 1904.  He introduced House bill 15601, “to protect the migratory game birds of the United States,” in the lame-duck session of the 58th Congress.^[40]  Rep. John Weeks of Massachusetts, Rep. Daniel Anthony of Kansas, and Sen. George McLean of Connecticut, all Republicans, later picked up the idea, resulting in various bills in the 61st and 62nd Congresses.  Fearing the disappearance of American hunting and its attendant sporting goods industry, gun and ammunition companies sponsored the American Game Protective Association (AGPA) to revive and lobby for an expanded version of the Shiras proposal in 1911.^[41]  In the same year the National Association of Audubon Societies (NAAS) significantly expanded its lobbying efforts with the hiring of T. Gilbert Pearson as full-time executive secretary.[42]  These efforts gained success in March 1913, at the end of the 62nd Congress, when McLean (whose state held the headquarters of the major arms and ammunition companies) appended his bill to a Department of Agriculture Appropriations bill and President Taft (not knowing of the “rider” legislation, a type he opposed on principle) signed it into law on his hectic last day in office.^[43]

            The new law, formally known as the Migratory Bird Act (MBA) but popularly referred to as the Weeks-McLean Act for its chief congressional sponsors, gave the Secretary of Agriculture significant new authority over the hunting of migratory birds.  In practice, the Secretary delegated his authority to the experts of the Biological Survey, again increasing its managerial responsibilities.  The Survey’s staff, particularly sometime Assistant Chief Theodore S. Palmer, had been compiling and publishing the various state hunting seasons for years as part of the USDA’s Farmers’ Bulletin series.  State regulations regarding migratory birds had varied wildly, and state governments often subscribed to the idea that the best hunting season allowed their residents to kill as many birds as possible before the game migrated to the next state.  Also, many states had allowed hunters to shoot birds in the spring, as they were migrating to their nesting areas, which biologists realized disrupted breeding by breaking up mated pairs of birds.  In national regulations ratified by the Secretary of Agriculture and the President, the Biological Survey proscribed spring hunting and limited the fall hunt to a maximum of three and a half months.  The Survey divided the continental United States into northern and southern zones, within which hunting seasons could be further reduced by state action, but not extended beyond the federal limits.^[44]

            However, the enforcement mechanisms of the Weeks-McLean Act quickly proved limited.  Strong congressional resistance to funding vigorous federal law enforcement of hunting regulations meant the Biological Survey could afford at most seventeen district inspectors, or federal game wardens, to enforce the law in the entire United States, although many States rendered valuable cooperative enforcement.[45]  Narrowly drafted, the MBA did not provide the power of arrest to the Biological Survey’s game wardens, nor did it outlaw the possession of birds during the closed season, thus making successful prosecutions of lawbreakers difficult.[46]  Additionally, MBA opponents raised questions of the act’s constitutionality in federal courts and sympathetic judges soon prevented its enforcement in several key areas of heavy migratory bird hunting.  A number of congressmen, particularly House Majority Leader Frank Mondell (R-WY), had opposed the Weeks-McLean Act on constitutional grounds during debate over its passage.[47]  Later, they provided scathing criticisms during debates over annual enforcement appropriations.[48]  Even those most sympathetic to the new migratory bird law, including Senator McLean and former Congressman Shiras, entertained some doubts as to the Weeks-McLean Act’s constitutionality.^[49]

            Although opponents challenged the MBA all the way to the Supreme Court, the Migratory Bird Treaty (MBT) deftly and preemptively girded the constitutionality of congressional action on behalf of migratory game by linking it to the U. S. Constitution’s treaty clause.[50]  Initiated in 1913 in response to a Senate resolution sponsored by Sen. McLean,[51] the United States and Great Britain, acting on behalf of Canada, ratified the treaty in 1916 despite the diplomatic strains of World War I.  The treaty committed both the United States and Canada to act through their federal governments to preserve the migratory bird species that crossed their border.  The treaty also placed numerous bird species classified as non-game and insectivorous under permanent no-hunting protection to maintain their benefits to agriculture.[52]
            Despite strident opposition by Sen. James Reed (D-MO) and Rep. Mondell, the Migratory Bird Treaty Act (MBTA) enacted the terms of the treaty in the United States in 1918.  The Migratory Bird Treaty and MBTA ensured firm federal control over migratory game seasons and bag limits, delegating their enforcement to the Secretary of Agriculture, and, following the earlier practice, to the Bureau of Biological Survey.  On 19 April 1920, the U.S. Supreme Court upheld the constitutionality of both the MBT and MBTA in the case of Missouri v. Holland.  Writing for the 7-2 majority, Justice Oliver Wendell Holmes rejected Missouri’s argument that the MBT and MBTA unconstitutionally usurped that State’s exclusive rights to migratory birds: “Wild birds are not in the possession of anyone; and possession is the beginning of ownership.  The whole foundation of the State’s rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State and in a week a thousand miles away.”  Holmes’s decision also noted that treaties had consistently been held to a different constitutional standard than acts of Congress and concluded with a ringing endorsement of the treaty’s pragmatism:

           Here a national interest of very nearly the first magnitude is involved.  It can be protected only by national action in concert with that of another power.  The subject matter is only transitorily within the State and has no permanent habitat therein.  But for the treaty and the statute there soon might be no birds for any powers to deal with.  We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forest and our crops are destroyed.  It is not sufficient to rely upon the States.  The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act.  We are of opinion that the treaty and statute must be upheld.[53]

The Court thus affirmed the ability and responsibility of the federal government to protect the populations of migratory birds within the United States by regulations of the Department of Agriculture.

            Even before the Supreme Court decided Missouri v. Holland, wildlife conservationists began looking beyond hunting controls to ensure healthy future bird populations.  As early as 1916, the Biological Survey officially warned that drainage projects “in the vicinity of the Klamath and Malheur Reservations in Oregon and the Big Lake Reservation in Arkansas, as well as projects of similar kind for draining private lands in various parts of the country, emphasize the importance and necessity of retaining as breeding grounds for waterfowl and other birds tracts of land which are not especially valuable for agricultural purposes.  Only in this way can proper provision be made for the maintenance and increase of an adequate supply of waterfowl.”[54]  On 18 February 1919, in a speech to a conservation convention at Ottawa, Canada, Edward W. Nelson, chief of the Biological Survey from 1916 to 1927, raised an international alarm over the expansive drainage of the North American wetlands vital for waterfowl.  Noting that habitat loss already threatened the trumpeter swan and whooping crane with extinction, Nelson warned that “if the drainage and devotion to agriculture and other purposes of the marshy areas continue, migratory waterfowl will diminish despite every effort along other lines to conserve them.”  He urged Canada and the United States to cooperate in the establishment of sanctuaries on both sides of the border.[55]  Later that year, in his annual report to the Secretary of Agriculture, Nelson wrote: “Increased protected areas suitable for breeding places for the migratory wild geese, ducks, cranes, swans, curlew, and shore birds should be provided.  Additional wild-fowl refuges along the paths of migration are needed in order to secure improved and equalized opportunities for shooting wild fowl for food and for recreation, particularly in Iowa, Missouri, Kansas, and Illinois.”[56]  The disruption of European agriculture in the First World War had created a premium for U.S. and, to a lesser extent, Canadian, agricultural products, which financed a widespread effort to bring every possible acre under the plow.  By 1924 wildlife advocates asserted that, within the continental United States, Americans had drained an area of wetlands larger in total area than the Great Lakes, or twice the area of the New England states.^[57]

            Presciently recognizing this threat to migratory birds, Nelson called for an expansion of the bird reservation system pioneered by Theodore Roosevelt with Pelican Island in 1903.  By 1920, the Bureau of Biological Survey administered about 70 of these reservations, spread unevenly from the state of Florida to the territories of Alaska and Hawaii.  Created by presidential executive orders reserving them settlement claims on the public domain, these early refuges largely consisted of rocky, offshore islands or lands surrounding federal reclamation projects.  The Biological Survey held little legislative mandate for this seminal system, limited congressional funding allowed the Survey to provide full-time or part-time warden service for only about two dozen reservations, and a number of reservations had already been dissolved or significantly shrunken by subsequent executive orders.[58]  Still, by 1920, the Bureau of Biological Survey held a clear responsibility for regulating the hunting of migratory birds through the MBT and MBTA, and a possible means of protecting bird habitat through the idea of the national bird reservation.

LEGISLATIVE AUTHORIZATION FOR A REFUGE SYSTEM, 1921-1929

            To far-sighted biologists, conservationists, and legislators, the Migratory Bird Treaty of 1916 created both the justification and obligation for a truly national system of bird reservations maintained by the federal government of the United States.  Although neither the treaty nor its enabling act of 1918 contained explicit provisions for such a federal refuge system, conservationists already recognized habitat preservation as a vital part of migratory bird conservation.  In particular, the NAAS and its early leaders had pioneered the creation and protection of both public and private bird sanctuaries, largely for the benefit of coastal rookeries of pelicans, egrets, and other colonial birds, but with equal protection for all bird species.[59]  As noted above, the Biological Survey officially noted its concern over the increased drainage of vital wetlands wildlife habitat in 1916, and called for an expanded refuge system for migratory game birds in 1919.  In July 1919, at the initiative of an officer formerly connected with the Biological Survey, the AGPA began openly appealing for a national system of publicly controlled marshlands to serve as both bird refuges and public shooting grounds.  On the request of Survey chief Edward W. Nelson, the IAGFCC appointed a committee to study the conditions of wetlands habitat at its annual meeting of October 1919.[60]  But the unsettled legal status of federal control over migratory birds meant that few resources could be devoted to such plans.

            With the Supreme Court decision of Holland v. Missouri confirming the Migratory Bird Treaty and the federal government’s responsibility for migratory birds in April 1920, wildlife conservationists began seriously considering plans to establish a national system of bird reservations.  At the urging of former Rep. George Shiras, then a member of its board of directors, the AGPA had already endorsed funding a system of refuges and public shooting grounds through a federal hunting license in January 1920.  The MBTA Advisory Board provided a similar endorsement in June 1920, joined by the IAGFCC in September 1920, and the National Game Conference of January 1921.[61]  Nelson directed United States Game Warden George A. Lawyer to prepare a legislative bill for a federal refuge system in consultation with AGPA President John Burnham.  Between October 1920 and April 1921, Lawyer, Nelson, and Burnham devised and revised multiple bill drafts.[62]  In the meantime, T. Gilbert Pearson, now president of the NAAS, presented an outline of the plan to the Agriculture Subcommittee of the House Committee on Appropriations on 8 January 1921.  Although the reasons for Pearson rather than Burnham making this particular committee appearance remain unclear, the NAAS of this era enjoyed a very close relationship with the Biological Survey through overlapping personnel at the highest levels, making Pearson’s role as a spokesman not unusual.[63]  Pearson briefly described a national system of wildlife refuges, to be funded by a $1 federal license on migratory bird hunters.  In addition to land acquisition, the $1 license would fund the larger number of federal game wardens necessary to adequately enforce the MBTA regulations.^[64]  Although no legislation embodying the proposal was immediately introduced, Pearson’s short appearance before a committee of the lame duck session of the 66th Congress began the legislative struggle to establish a national wildlife refuge system.

            With fortified GOP majorities controlling the 67th Congress, friends of the migratory birds turned to a familiar congressional ally, Rep. Daniel Anthony (R-KS), for the needed legislation to authorize a federal refuge system.  First elected to the House in 1907, Anthony had played an important role in the 1913-1918 efforts for the MBA and MBTA, motivated by duck hunting experiences on his Kansas farm.[65]  While Anthony did not originate the refuge system idea, his strong identification with the proposal led to its widespread designation as the “Anthony bill” until his retirement from the House in March 1929.  In May 1921, Anthony and Sen. Harry New (R-IN), a prominent big-game hunter, introduced identical bills, H.R. 5823 and S. 1452, “providing for establishing shooting grounds for the public, for establishing game refuges and breeding grounds, for protecting migratory birds, and requiring a Federal license to hunt them.”^[66]  As suggested by their titles, the bills proposed a broad program of refuge establishment, with certain sections to be opened as public shooting grounds, overseen by a strong force of federal game wardens, and financed by the proceeds of a $1 federal hunting license.  Following the plan of the Weeks Act of 1911 for federal forest reservations, a commission composed of three Cabinet Secretaries, two Senators, and two Representatives would approve the refuge purchases recommended by the Bureau of Biological Survey.[67]

            The New-Anthony proposal, also referred to as the game refuge bill, contained no unprecedented features.  As with many reforms of the preceding Progressive Era, wildlife conservationists took state-level innovations and sought to apply them on a national scale.  In wide practice at all levels of government by 1921, creating refuges or sanctuaries for wildlife protection had nearly universal acceptance as a proper way to increase wildlife populations.  Hunting was widely, though far from universally, practiced on such preserves.  In particular, Pennsylvania had long gained praise for its system of state-owned wildlife preserves and public shooting grounds, widely credited with restoring game hunting in that state.[68]  Large-scale federal land acquisition, as opposed to reservations from the public domain, had a more recent history, but the Weeks Forestry Act of 1911 inaugurated a far larger program than that contemplated by the New-Anthony proposal.[69]  The federal hunting license presented the most innovative aspect of the legislation, although somewhat similar user fees had been implemented during the Progressive Era on the national forests.  Hunting licenses represented a widely accepted mechanism for state wildlife agencies by 1921, and the New-Anthony bill proposed their extension to the federal government’s chief wildlife agency, the Bureau of Biological Survey.[70]

            Historian Stephen Fox has argued that the game refuge bill’s provisions for public shooting grounds, in contrast to a prohibition on hunting in existing refuges, “redefined what a federal game refuge should be.”[71]  This is a clear misrepresentation of the legal status of the approximately seventy federal bird refuges that existed in 1921.  Under the operative reservations protection act of 1906, Congress forbid and set penalties for hunting and other disturbances of birds on reserved lands, except under permit from the Secretary of Agriculture.[72]  However, Congress placed no limit on the Secretary’s permit power, so in theory he might have opened all existing refuges to hunting at his discretion.  Of course such opportunities were limited by the fact that the majority of reservations created before 1920 protected non-game birds by design, and game birds such as waterfowl only incidentally.  Plume hunting, both legal and illegal, had been the impetus for the original bird reservation, Pelican Island, and remained the controlling interest for most refuges created after it.  Some exceptions, such as Oregon’s Klamath Lake, did host large numbers of migratory waterfowl, but the Biological Survey had little incentive to emphasize the creation of such areas until Missouri v. Holland confirmed the federal government’s controlling interest in migratory bird protection in 1920.

            The New-Anthony refuge proposal garnered significant support from the Harding administration and conservation organizations.  Secretary of Agriculture Henry C. Wallace endorsed the New-Anthony bill in June 1921.  In letters to the chairmen of the House and Senate Agriculture Committees (apparently ghostwritten by Biological Survey personnel), Wallace emphasized the many national benefits of the water, swamp, and marsh areas that would be preserved by congressional action.  Wallace’s arguments persuaded the Senate Committee on Public Land and Surveys to report out the measure even without hearings.^[73]  On 12 December 1921, the Eighth Annual National Game Conference, sponsored by the American Game Protective Association and attended by most of the prominent North American wildlife conservationists, formally endorsed the New-Anthony bill.[74]  When the House Committee on Agriculture held hearings in February 1922, they heard the bill endorsed by representatives of the Bureau of Biological Survey, American Game Protective Association, National Association of Audubon Societies, Campfire Club of America, Boone and Crockett Club, and a dozen state game commissions.  In addition, the committee received written statements from at least thirty-six state game commissions in support of the proposal.  Witnesses and statements alike emphasized the constructive conservation of wildlife habitat and migratory birds that would result from the passage of the bill.^[75]

            Unfortunately, the Anthony and New bills received a cooler reception on the floors of both houses of Congress.  As had been the case with the MBTA and Weeks-McLean Act several years earlier, a combination of western and southern congressmen opposed federal efforts on behalf of migratory birds.  In their opposition, Western congressmen had the backing of the Western Association of State Game Commissioners, which resolved to oppose the New-Anthony proposal’s license fund in favor of a direct congressional appropriation on 17 January 1922.[76]  Objections to New’s bill on the Senate unanimous consent calendar by southern and western Democrats blocked quick action on the bill and foreshadowed tough floor debates in the future.^[77]  Anthony’s bill fared no better in the House before the 1922 elections.  The February hearings before the House Committee on Agriculture had revealed considerable discontent with the bill among the southern Democratic members of the committee.  H. M. Jacoway of Arkansas, David Kincheloe of Kentucky, James Aswell of Louisiana and Marvin Jones of Texas sharply interrogated Anthony and the other witnesses appearing on behalf of the bill.  In what would become a familiar argument, these Democratic Congressmen objected to both the license provision of the bill and the promised expansion of the federal warden service.  Additionally, appearing as a witness, North Carolina Congressman Hallett S. Ward argued that the bill would aid only rich, leisured sportsmen, who would manipulate the refuge provisions to exclude local hunters from the public shooting grounds.^[78]

            After several months of delay, the Agriculture Committee submitted a favorable report on the Anthony bill in May 1922, but with amendments.  The most significant amendment excluded resident landowners from the license provision, thereby reducing the bill’s impact on farmers, the committee’s primary constituency.  Another amendment motioned towards states’ right concerns by providing that nothing in the proposed act should be taken to interfere with state laws not in conflict with federal laws or regulations.  The amendments apparently satisfied the committee’s previously skeptical southern Democrats, as the report noted, “it was the unanimous opinion of the committee that the bill be reported out.”[79]

            However, these changes did not satisfy Rep. Ward, who took the House floor to denounce the bill on 22 June 1922.  In an argument repeated over the next ten years, he raised the specter of a federal game warden arresting a boy on a federal bird reservation for possessing even a tiny bird’s egg, carrying him “across a dozen counties to a Federal commissioner, by this commissioner bound over to a Federal grand jury, and there indicted and put on trial, and the Federal judge must sign and enter a judicial decree determining the proper custody and possession and property of such bird’s egg.”  To Ward, such a possibility, however slight in a reality of prosecutorial discretion, demeaned the national government, tried the patience of the American people, and increased the possibility of “Bolshevism, socialism, and every form of public discontent all over the land.”  In closing, Ward renewed his claim, first raised in the February hearings, that rich, idle sportsmen were behind the bill in order to gain federal protection for their sporting grounds.  Although many of Ward’s claims seem patently preposterous, they tapped a broader discomfort among congressmen and even some conservationists with redefining the federal role in wildlife protection.  While historian Stephen Fox has noted that the game refuge bill redefined federal wildlife refuges by opening them to hunting, Ward and other opponents most strongly objected to the general expansion of the federal role in wildlife law, a domain previously accepted as a function of state governments.^[80]

            Fortunately, some Congressmen saw other values behind the game refuge proposal.  Simeon Fess of Ohio supported the refuge proposal to prevent all winged wildlife going the way of “the millions of migratory pigeons that clouded the sky” in his childhood.^[81]  In the short, post-election session of the 67th Congress, the advocates for migratory birds believed that Fess’ fears would be avoided by the passage of the New-Anthony bill.  In the Senate, New brought his refuge bill to the floor on 5 December 1922.  The Senate agreed to a series of amendments offered by New to meet objections to his bill.  These amendments created an exception to the license provision for resident landowners, clarified the force of state laws in regards to the proposed federal law, authorized the Secretary of Agriculture to call an annual conservation conference, and also perfected various technical aspects of the bill.  Still, as in the House, amendments did not satisfy all opponents of the bill.

            Strong partisan lines marked positions on the bill in the Senate, with southern and western Democrats opposed to it and Republicans largely supporting it.  Southerners Thaddeus Caraway (D-AR) and Nathaniel Dial (D-SC) took the lead in attacking the bill over two days of debate.  Like Rep. Ward, Caraway viewed the bill as an over-reaching federal police bill.  Dial and Caraway offered amendments to reduce the number of people liable to pay the federal license to an absolute minimum, effectively nullifying the bill by eliminating the requisite license funds to provide refuges.  Caraway asserted that he would not object to a direct appropriation to purchase bird reservations, but he sought to prevent a federal license for anyone who did not hunt on a federal reservation.  After considerable debate, the Senate defeated Caraway’s amendment, 18-32, with 45 senators not voting.  The bill, as previously amended, then passed the Senate by a similar vote of 36-17.  Of the 18 votes for Caraway’s amendment and 17 votes against the bill, all came from Democrats.  Conversely, of the 32 votes against Caraway’s amendment and the 36 votes for the bill, 31 and 33 came from Republicans, respectively.^[82]

            Meanwhile in the House, Majority Leader Frank Mondell promised his fellow Republican, Daniel Anthony, that his bill would be defeated.^[83]  After the passage of the Senate bill, the House Committee on Agriculture quickly filed a report on the bill, recommending the substitution of the previously reported Anthony bill.  Perilously close to the end of the 67th Congress, the Rules Committee brought a privileged report before the House.  Both the Majority and Minority Leaders opposed the Anthony bill in the debate over the rule.  Despite the leadership’s opposition, the House adopted the rule to consider the Anthony bill, 153-117.  Twenty-nine Republicans joined 87 Democrats and one Socialist in voting against the rule, while only 5 Democrats voted with 148 Republicans in favor of the rule.  However, the rule provided only for the consideration of the House bill, and not the refuge bill already passed by the Senate.  Unable to gain unanimous consent for the substitution of the Senate refuge bill, the House resolved itself into the Committee of the Whole to consider Anthony’s bill, H.R. 5823.^[84]

            In the limited debate allowed under the rule, Anthony and other advocates of the game refuge bill remained clearly on the defensive.  Virginia’s Joseph Deal questioned the necessity of such an action if, as asserted by Anthony, the regulations of the MBTA continued to increase bird populations.  Both Jones of Texas and Ward of North Carolina denounced the leisured sportsmen they saw behind the proposal, while decrying the interference of the federal government with the hunting activities of poor farm boys and “one-gallus” men.  Jones replied that he was willing to see migratory birds protected, and offered an amendment to more completely protect them by removing the provisions for federal public shooting grounds from the bill.  This provoked some spirited debate over whether the federal government was the proper agency to provide public shooting opportunities.^[85]

            Before Jones’ proposal could be resolved, Allen Treadway of Massachusetts moved to strike out the enacting clause of the bill.  After a few minutes more debate, the Committee of the Whole voted 68-56 on a division, then 94-60 with tellers, to strike out the enacting clause of the bill.  After a quorum call demanded by Anthony, the full House voted to accept the Committee of the Whole report 154-135, killing the Anthony bill in the 67th Congress.  Fifty-nine Republicans joined 94 Democrats in voting to kill the migratory bird refuge bill.^[86]  Conservationists viewed this result as a favor to retiring Majority Leader Mondell, who was closing out his final days in Congress and had previously provided strenuous opposition to both the Weeks-McLean and Migratory Bird Treaty Acts.  Though no great public outcry against the proposal was alleged, the opponents of the Anthony bill rallied sufficient votes to defeat it on a combination of states’ rights, opposition to federal government growth and centralization, and discomfort with public shooting grounds.  In the journal of the Audubon Societies, T. Gilbert Pearson openly blamed the bill’s failure on Mondell’s machinations, invoked no less an authority than the late Theodore Roosevelt against Mondell’s record, and celebrated the end of the first modern Majority Leader’s political career.^[87]

            The first effort for a national refuge system brought out a number of continually contentious issues in opposition to the proposal.  First, a wide-scale federal purchase program of private lands for the benefit of wildlife and a federal hunting license would greatly expand the federal role in the domain of wildlife law, an area previously accepted to be a function of state governments.  Some congressmen, like Frank Mondell, flatly opposed the federal government’s exercise of any jurisdiction over migratory birds and sought to prevent any solidification of that power.  These opponents had to be outmaneuvered or outlasted, as with Mondell’s retirement.  Second, numerous senators and representatives questioned the legitimacy and/or wisdom of a national hunting license.  Some objected to the license simply as a further tax measure.  Others argued that the license would cause undue confusion or interference with state hunting license laws.  Third, though the federal government already operated seventy bird reservations withdrawn from the public domain, considerable opposition existed to buying private lands for federal refuges.  Fourth, some who accepted the idea of national refuges still objected to the use of any part of those lands as public shooting grounds.  While counter to the policy on most existing bird reservations, the game refuge bill’s advocates included the shooting grounds provision to gain public support for the proposal among landless hunters.  In an ironic twist, opponents condemned the proposed shooting grounds as a luxurious benefit for rich, idle sportsmen to the exclusion of the poor farmer, while advocates praised them as a benefit to the common man.  These enduring objections gradually forced changes to subsequent versions of the Anthony proposal to try and defuse opposition.

            At the beginning of the 68th Congress, Rep. Anthony quickly introduced a new game refuge bill, “for the establishment of migratory-bird refuges to furnish in perpetuity homes for migratory birds, the establishment of public shooting grounds to preserve the American system of free shooting, the provision of funds for establishing such areas, and the furnishing of adequate protection for migratory birds, and for other purposes.”^[88]  The American Game Protective Association continued its sponsorship, and the NAAS and other conservation organizations again endorsed it.  Despite the considerable opposition in the last Congress, the new Anthony bill retained the federal license feature, as well as the provisions for federal public shooting grounds.  However, a new organization and a new proposition soon injected itself into the congressional conservation debates, with potentially significant ramifications for the Anthony bill.

            In January 1922, a small group of midwestern outdoorsman formed the Izaak Walton League of America (IWLA), named for the seventeenth-century English outdoorsman.  Under the leadership of an energetic, former advertising man, Will H. Dilg, the IWLA quickly expanded to a national membership, began publishing Outdoor America, and agitated for a variety of conservation measures at all governmental levels.^[89]  Stephen Fox has strongly emphasized the IWLA’s importance as both the first truly national conservation group and the first mass membership group: “At a time when the Sierra Club, the AGPA, and the Audubon Association each had a membership of seven thousand or less, the Izaak Walton League had more than one hundred thousand members within three years of its founding.”[90]

            As its first foray into national wildlife conservation matters, the League sponsored the Upper Mississippi River Wild Life and Fish Refuge Act.  Sen. Joseph McCormick (R-IL) and Rep. Harry B. Hawes (D-MO) introduced the proposal into Congress on 20 December 1923.  The bill authorized the federal acquisition and preservation of flood-prone bottomlands along a three hundred mile stretch of the Mississippi River from Rock Island, Illinois to Wabasha, Minnesota, much of it previously threatened by drainage projects.  The refuge would preserve the last great spawning grounds of the American black bass, a species highly prized by sport fisherman but increasingly threatened by habitat loss from man-made alterations to rivers and streams.  As a secondary effect, the refuge would provide a significant breeding, resting and feeding grounding for migratory wildfowl along the Mississippi migration flyway.  As with existing federal refuges, the Secretary of Agriculture could permit hunting on the proposed refuge at his discretion.  In the vital difference from the Anthony bill plan of refuge acquisition via dedicated license funds, the Upper Mississippi River Wild Life and Fish Refuge bills depended on direct appropriations from general Treasury receipts.^[91]

            On 11-13 February 1924, The House Committee on Agriculture held hearings in support of the Upper Mississippi River refuge idea, and the Senate Commerce Committee held a supplemental hearing on 15 February 1924.  Hawes and Dilg organized a significant parade of experts and conservationists before the committees.  Witnesses included T. Gilbert Pearson, President of the NAAS; Dr. Edward Nelson, Chief of the Biological Survey; Frances E. Whitley, Conservation Chairman of the General Federation of Women’s Clubs; various experts from the Commerce Department’s Bureau of Fisheries; and members of several hunting and fishing clubs, including the prominent Boone & Crockett Club.  These witnesses variously emphasized the beauty of the area, the requirement of federal participation in the multi-state effort, the economic importance of fish and game in the region, and the danger to the area through ill-advised but imminent drainage efforts.^[92]

            While all the witnesses favored the Upper Mississippi refuge proposal, the exact meaning of its establishment somewhat divided them.  While some viewed the Upper Mississippi project as a complete goal in and of itself, not everyone at the hearings agreed.  Responding to questions from the committee, both Pearson and Nelson expressed the idea that the Mississippi River proposal would be complementary to the national system proposed by the Anthony bill.  Pearson reminded the committee that the Anthony bill previously reported by the Agriculture Committee had failed, and a new one would appear before them shortly.  Expressing what would become a rationale for future congressional actions, Nelson declared the separate act necessary as an emergency measure to preserve wetlands in imminent danger of destruction.^[93]

            Among other witnesses, Hawes and Dilg presented the measure as an action primarily on behalf of fish, rather than migratory birds.  A Commerce Department fish expert argued that an existing federal program, which saved millions of fish from receding flood waters each year, would be greatly aided by federal acquisition of the overflow lands, removing the need to cooperate voluntarily with hundreds of private landowners.  Though he acknowledged support from Pearson’s NAAS, Hawes claimed migratory bird production was incidental to the bill’s true purpose, the preservation of the black bass.^[94]  Interestingly, the clearly interrelated nature of fish and bird conservation in the bill provoked several committee members to presciently support the merger of the Biological Survey and Bureau of Fisheries.^[95]  Proponents of the Hawes bill built a powerful case for their proposals, including the necessity for federal action in this multi-state river basin.  However, the House Agriculture Committee, acting in the deliberate way that characterized the chairmanship of Gilbert Haugen (R-IA), declined to immediately report out the Hawes bill.

            Instead, the House Agriculture Committee held another hearing on wildlife issues on 29 March 1924, devoted to the Anthony bill.  Seeking constructive compromise, Anthony led off the hearing with several proposals to meet certain objections to his bill.  First, he asked that the committee consider ways to confer joint jurisdiction for the enforcement of the law upon state courts, which would largely eliminate the specter of overly aggressive federal police powers raised in the last Congress’s debates.  A second proposed amendment would have replaced federal court penalty provisions for hunting without a license with simple fines of $5 and $25.  Finally, Anthony suggested a change to the appropriations language to conform with recent changes to the congressional budget process.  The new bill had already incorporated changes urged by the Agriculture Committee the previous year, including exceptions to the license requirement for landowners and hunters under the age of 16.^[96]

            Despite the alterations in enforcement mechanisms, the license provision continued to provoke opposition among some members of the Agriculture Committee.  As in the previous Congress, Rep. Aswell objected to the license feature.  Supported by Marvin Jones (D-TX) and George Johnson (D-WV), Aswell argued that a direct appropriation would be a better solution than a license he feared would stir popular opposition.  In Aswell’s opinion, “it is morally wrong to make them [non-licensed hunters] let a duck go past without shooting it.”  Even Dr. Nelson’s explanation that the wetlands preservation made possible by the $1 license would secure migratory bird populations throughout the country failed to persuade Aswell of its value. ^[97]

            Although the Southern Democrats on the House Agriculture Committee had voiced strong opposition to the game refuge bill, the full committee favorably reported both it and the Upper Mississippi River Wild Life and Fish Refuge bill, but with committee amendments, on 14 May 1924.  The committee amendments to the Upper Mississippi River refuge bill significantly reduced any immediate impact the bill would have in the event of its passage.  To conform to fairly recent House rules changes, one amendment substituted a future authorization for $1.5 million for the $3 million direct appropriation.  Additionally, the committee added a complicated provision intended to limit the opportunities for land speculation at the expense of the government.  This required the Department of Agriculture to determine that the total refuge area was obtainable at the authorized amount, at an average price of $5 per acre or less, and not above the average local land prices.^[98]  The report on Anthony’s game refuge bill noted that it “differs from the bill reported last Congress, chiefly in that it is made less drastic in its penal provisions.”  A letter from Secretary of Agriculture Henry C. Wallace again endorsed the game refuge bill, reviewing the same arguments he previously made in its favor.  However, the Bureau of the Budget advised Congress that the concept of a license-derived fund in the U.S. Treasury conflicted with President Coolidge’s opposition to government revolving funds.^[99]  Ten days later, the Senate report from the Committee on Agriculture and Forestry contained the same notation regarding the license fund concept.^[100]

            The full House considered the less controversial Upper Mississippi Refuge bill first.  Taking it up via the consent calendar in the final days of the 68th Congress’ first session, the House approved the committee amendments and passed the entire bill without debate.  Acting on the somewhat surprising consent requests of James Reed of Missouri and Wesley Jones of Washington, the Senate discharged the House bill from committee consideration and also passed it without debate.  President Coolidge quickly signed the bill authorizing the Upper Mississippi River Wild Life and Fish Refuge into law on 7 June 1924, the final day of the 68th Congress’s first session.^[101] 

            Despite the easy passage of the initial authorization bill, the drawn-out struggle to gain the funds to actually buy the lands for the Upper Mississippi Wild Life and Fish Refuge demonstrated the drawbacks of the direct appropriations route for refuge purchases.  The appropriations process required that the Bureau of the Budget, House Subcommittee on Agricultural Appropriations, full House Appropriations Committee, Senate Subcommittee on Agricultural Appropriations, full Senate Appropriations Committee, and of course the Senate, House, and President, all annually approve an appropriation until the completion of the refuge.  As is evident from this list, a general appropriation left multiple places for refuge funds to be reduced or eliminated.  As late as 1937, the Upper Mississippi refuge was still in process of acquisition because of the drawn-out funding process.^[102]

            In addition to the normal appropriations hurdles, the complex language and restrictions of the Upper Mississippi refuge authorization act meant that supporters of the refuge had to continually seek amending legislation.  As soon as the second session of the 68th Congress, Upper Mississippi refuge advocates introduced several joint resolutions in each house to reduce purchasing restrictions.^[103]  At the same time, the Bureau of Biological Survey, responsible for the new refuge’s acquisition and administration, had to build and develop a land acquisition section from scratch.  While this development of “bureaucratic capital” clearly aided the Biological Survey in its later acquisitions, it initially produced yet another drag in the slowly paced Upper Mississippi refuge acquisition process.^[104]

            Meanwhile, the legislative struggle for the broader, self-sufficient game refuge bill continued in the House of Representatives.  Unanimous consent consideration having failed, Anthony appeared before the House Rules Committee to request a special rule for consideration of his bill on 6 February 1925.  Anthony informed the Rules Committee members of amendments planned to meet continuing opposition to the bill.  The most important change redistributed the percentages of expenditures from the migratory bird license fund.  Under the new proposal, law enforcement was to be reduced from forty-five to twenty-five percent, and land acquisition increased accordingly to sixty-five percent, with the remaining ten percent for administrative purposes.  Anthony hoped these changes would alleviate the fears of an overly large federal police force emerging from the license fund.^[105]

            The Rules Committee granted Anthony’s request for a special rule and reported House Resolution 438, for the consideration of House bill 745, in a privileged report on 19 February 1925.  Despite the opposition of Minority Leader Finis Garrett, the House agreed to the resolution, which provided for one hour of general debate and amendment under the five-minute rule in the Committee of the Whole House.  Over three days of debate, Anthony and other refuge supporters fended off a series of attacks on the bill.  As before, opposition centered on the federal law enforcement forces authorized, the allowance for shooting grounds, and the penalties provided for in the bill.  Despite a series of dilatory actions, without the help of former Majority Leader Mondell, the refuge bill opponents could not seriously amend or defeat the measure.  By a vote of 212-113, the House passed the Anthony bill with the license fee, shooting grounds, and game warden provisions intact.  In the closely divided House of the 68th Congress, Anthony and the refuge proponents assembled bipartisan support with 147 Republicans joined by 64 Democrats and one independent.  The Garrett-led opposition received 94 Democratic votes, with 18 Republicans and 1 Farmer-Laborer.^[106] 

            After the extensive debate and hard work of passing the Anthony bill in the House, an unfortunate lapse in Senate courtesy dashed its hopes of passage.  On 25 February 1925, the President pro tempore, Albert Cummins of Iowa, laid the Anthony bill before the Senate for a committee reference, noting that Missouri’s James Reed had requested a reference to the Judiciary Committee.  As Reed entered the chamber, Smith Brookhart (R-IA) moved that the bill be referred to the Agriculture and Forestry Committee, which had reported Brookhart’s companion bill almost a year earlier.  However, by making his motion under the rules of the “morning hour,” Brookhart prevented Reed from making any statement on the reference of the bill.  Clearly offended by this ill-advised action, Reed sharply rebuked Brookhart as follows:

            If the Senator from Iowa wants to take that advantage he may do so.  The bill     came from the House during his absence.  I asked to have it sent to the Committee         on the Judiciary and was informed that the Senator from Iowa, who was absent at       the time, wanted the bill to lie on the table until he could be here.  I accordingly had it laid on the table and held for him.  If he wants to cut me out of the right to         say anything about the reference of the bill, he is at perfect liberty to do so; but if          he does so, I promise him that his bill will not pass at this session.^[107]

Another opponent of the game refuge bill, Reed Smoot (R-UT), objected to a last-ditch unanimous consent proposal to hear Senator Reed and the Senate referred the Anthony bill to the Committee on Agriculture and Forestry.  The committee quickly reported the bill back to the full Senate, but Reed kept his word and the game refuge bill did not receive Senate action in the few remaining days of the 68th Congress.^[108]

            With the end of the 68th Congress, the game refuge bill concept had passed both the Senate and the House of Representatives, though in different Congresses, thus failing to make it to the President for potential approval.  Still, advocates of the bill had plenty of reason to hope for success in the 69th Congress.  John P. Holman, lobbyist for the National Association of Audubon Societies, reported that only filibustering tactics in the Senate on other measures had prevented the refuge bill’s passage in the 68th Congress, and 72 of 96 Senators supported it.^[109]  As in the previous two Congresses, Republicans controlled both houses of the 69th Congress and refuge advocates had the advantage of working with Agriculture Committee chairmen familiar with, and willing to report, the game refuge bills.  Rep. Anthony remained a firm and influential supporter of the game refuge proposal in the House.  In the Senate, Smith Brookhart continued his sponsorship of the game refuge measure despite embroilment in an election recount controversy and estrangement from the Republican Party, which eventually resulted in his unseating.^[110]  However, Peter Norbeck, senator from South Dakota since 1921, more than compensated for Brookhart’s loss as Senate manager of the game refuge bill.  A well driller by trade, Norbeck knew the value of watered areas, and as a “Roosevelt Republican” he stood firmly in favor of conservation.^[111]  Holman seemed well founded in his prediction of speedy passage for the game refuge bill in the 69th Congress.

            Perhaps most importantly, in the 69th Congress, the game refuge bill finally enjoyed unanimous support from leading conservation groups.  At the annual meeting of the International Association of Game, Fish and Conservation Commissioners, held 20-21 August 1925 at Denver, CO, NAAS president T. Gilbert Pearson engineered a compromise on the contentious issue of funding for the proposed federal game refuges.  The conference endorsed the proposal of Utah Game Commissioner David Madsen, to fund federal migratory bird operations with the existing excise tax on arms and ammunition and to add state representatives to the proposed Migratory Bird Conservation Commission, which would approve all refuge acquisitions.  The conference then appointed a committee of five to prepare a new bill embodying these features, consisting of representatives from the Western Association of State Game Commissioners (David H. Madsen), International Association of Game, Fish and Conservation Commissioners (William C. Adams), AGPA (John Burnham), NAAS (T. Gilbert Pearson, chairman of the committee), and Izaak Walton League (George Selover, chairman, IWLA Bd. of Directors).  In the key feature of the compromise, the participating organizations also agreed to drop opposition to a federal hunting license if Congress could not be persuaded to devote the arms and ammunition excise tax to refuge acquisition and migratory bird protection.  Although Pearson received a hearing before House Committee on Ways and Means to present the proposal of the “Denver Committee,” the pending abolition of all “nuisance taxes” imposed during American participation in World War I, including the arms and ammunition excise tax, torpedoed the plan.  So, with the inauguration of the 69^th Congress, organized conservationists rallied behind the default federal license fund for refuge appropriations.[112]

            When Congress reconvened in December of 1925, Brookhart quickly re-introduced the earlier game refuge proposal, now numbered as Senate 1053.  Anthony waited until 12 January 1926 to introduce his revised game refuge bill, H.R 7479.  Soon after, Brookhart introduced S. 2607 as a companion to Anthony’s measure.^[113]  The new game refuge bill title, “for the purpose of more effectively meeting the obligations of the existing Migratory Bird Treaty with Great Britain by the establishment of migratory bird refuges,” emphasized the international implications of the proposal in an era when Congress took treaty obligations very seriously.  Despite the new title, the game refuge bills of the 69th Congress differed little from the earlier bills.  They again proposed a $1 federal hunting license, with receipts to “be reserved and set aside as a special fund in the Treasury ... as the migratory bird refuge and marsh land conservation fund, to be appropriated” by Congress.  The bill provided for the division of the license fund on a 60-40 basis, with the larger amount devoted to refuge acquisitions, and the smaller amount to law enforcement and administrative expenses, including the costs incurred by the Post Office Department for issuing the licenses.  Again following precedent, the bill provided for a special commission, consisting of three Cabinet (Secretaries of Agriculture and Commerce, and the Postmaster General) and four Congressional members (two Representatives, two Senators) to pass on refuge acquisitions.  Fulfilling the request of the Denver conference and as a further concession to previous states’ rights opposition, a new provision granted ex officio membership on the commission to the chief State conservation officer of a refuge acquisition site.  The proposal also granted the States concurrent authority to patrol and enforce regulations on the prospective federal refuges.  State legislatures continued to retain the power to block acquisitions by refusing to enact necessary enabling legislation to allow federal refuges in their state.  Redrafted penalty provisions attempted to avoid further burdening the federal District Courts, already straining under Prohibition violations.  The bill authorized United States commissioners to accept fines of $10 to $500 from violators who wished to avoid District Court appearances and any threat of imprisonment.^[114]

            The House Committee on Agriculture, still chaired by the venerable Gilbert N. Haugen (R-IA), granted a hearing to the new Anthony bill on 15 February 1926.  The witnesses for the hearing demonstrated the accord that the major conservation and sportsmen organizations had reached on behalf of the game refuge bill.  While committee members inserted a few statements against the bill into the record, no witnesses appeared in opposition.  AGPA president John Burnham explained the newfound unanimity among the major conservation organizations for the game refuge bill, thanks to the work of the Denver Committee.  The AGPA, previously the game refuge bill’s chief sponsor, now co-sponsored it in conjunction with the Izaak Walton League, National Association of Audubon Societies, Western Association of Game Commissioners, and the National Association of Fish, Game, and Conservation Commissioners.  Of these groups, only the AGPA and the Audubon Societies had consistently supported the game refuge bill in the previous two congresses.  Leaders of all the organizations represented by the Denver Committee testified on behalf of the latest game refuge bill, urging its passage as soon as possible, and noted that previous areas of discord had been largely resolved.  The most striking testimony came from David H. Madsen, representing the Western Association of Game Commissioners, who had previously strongly opposed the game refuge bills.  Madsen admitted that he still found the license provision objectionable, but due to the abolition of the federal excise tax on arms and ammunitions there was no viable alternative to the license feature to raise a reliable, annual fund for the much-needed project of wildlife conservation.  Madsen felt that additional urgency had been added to the bill by drought in the western states, which was estimated to have already destroyed sixty percent of the migratory birds’ feeding grounds in the West.^[115]   

            The united front presented by conservation organizations reduced criticism of the game refuge bill by committee members.  Southern Democrats on the committee still provided familiar opposition on the license provision.  But, the proponents of the bill effectively stressed the license as the best available funding method, countering arguments for direct appropriations or the recently abolished arms and ammunitions excise tax.  Still, some committee members remained discomforted by the allowance for public shooting grounds on the proposed refuges.  David Kincheloe (D-KY) succinctly summed up the general feeling of opponents of shooting grounds to Anthony:

            If you will set aside these breeding grounds and feeding grounds as sanctuaries,             where there will never be a gun fired, and let the overflow go to everybody, I will vote for your bill; but I know, and so do you, that whenever you have a shooting          ground part of the year these fellows who have the money and time and             transportation are the fellows who will get the benefit of that shooting.^[116]

But, on 27 February 1926, the Committee on Agriculture reported the bill with its provisions for shooting grounds and federal licenses intact, recommending only technical amendments.[117]  Meanwhile, the Senate Committee on Agriculture and Forestry reported out Brookhart’s companion bill on 17 February 1926, urging similar technical amendments suggested by the Department of Agriculture.^[118]