United States v. Sheldon C. G. Helsley, Orville B. Jones and Jerry A. Shipman, Defendants

This appeal by the United States presents the question of the constitutionality of the Airborne Hunting Act of 1971, Pub.L.No. 92-159, 85 Stat. 480 (codified at 16 U.S.C. § 742j — 1 (1976)). The appellees were charged with shooting a coyote from an aircraft in violation of the Act. The United States District Court for the District of Montana found the Act unconstitutional as “an impermissible and invalid preemption of a regulatory power plainly reserved to the states,” 463 F.Supp. 1111, 1113 (D.Mont.1979) and dismissed the charges. Because it was error to hold the act unconstitutional, we reverse.

The commerce clause of the Constitution, art. I, section 8, clause 3, is fully sufficient to empower Congress to enact the statute and to sustain its enforcement against these appellees. The Congress has declared its authority over national air space by enacting the following provision in Section 1108(a) of the Federal Aviation Act of 1958, Pub.L.No.85-726, 72 Stat. 731 , 798:

49 U.S.C. § 1508 (a). The authority for this enactment rests on the commerce clause. See City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 626-27 , 93 S.Ct. 1854 , 36 L.Ed.2d 547 (1973); Braniff…