A couple of days ago, Michael Price asked, "Who, in law, actually
*owns* the birds?" Scott Richardson responded that they were owned
by the citizens of Washington. The law is, of course (for how else could
lawyers earn a living?), a bit more complicated.

A bit of history may help to sort it out. The English common law -
- which forms the basis for our common law -- divided animals into two or
three general categories, domesticated or tamed animals (domitae naturae
or mansuetae naturae) and wild animals (ferae naturae). Domesticated
animals (cattle) were "absolute" personal property; tamed animals were
also personal property unless they reverted to their wild ways. Wildlife,
on the other hand, became property only when reduced to possession --
generally by killing the animal. Until it was captured, wildlife thus was
not the property of anyone -- it was unowned (res nullius).

In antebellum America, however, the justification for state
regulation was based on different theories: regulation was tied to the
public interest conceived as a type of property. Regulation of wildlife
thus was justified on the theory that the state, acting as trustee for its
citizens, owned the wildlife within its borders. This theory -- known as
the "state ownership doctrine" -- was endorsed by the Supreme Court in
an 1896 decision, Geer v. Connecticut, 161 U.S. 519 (1896).

The theory was gradually abandoned as its artificiality was
recognized: who can be said to *own* wildlife that comes and goes as it
wishes? In a 1977 decision the Supreme Court wrote:
"To put the claim of the state upon title is," in Mr. Justice
Holmes' words, "to lean upon a slender reed." Missouri v.
Holland, 252 U.S. 416, 434 (1920). A State does not
stand in the same position as the owner of a private game
preserve and it is pure fantasy to talk of "owning" wild fish,
birds, or animals. Neither the States nor the Federal
Government, any more than a hopeful fisherman or hunter,
has title to these creatures until they are reduced to
possession by skillful capture. Ibid.; Geer v. Connecticut,
161 U.S. 519, 539-40 (1896) (Field, J., dissenting). The
"ownership" language of cases such as those cited by [the
state] must be understood as no more than a 19th-century
legal fiction expressing "the importance to its people that a
State have power to preserve and regulate the exploitation
of an important resource." Toomer v. Witsell, 334 U.S.
385, 402 (9148); [ ]. Under modern analysis, the question
is simply whether the State has exercised its police power
in conformity with federal laws and Constitution.
Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977).

Thus, no one *owns* the birds -- but both state and federal
governments may regulate conduct to protect them.