Subject: Re: ownership of wildlife
Date: Mar 6 07:58:25 1996
From: Eugene Hunn - hunn at u.washington.edu


Dale,

Thanks for an excellent clarification.

Gene Hunn.

On Tue, 5 Mar 1996, Dale Goble wrote:

>
>
> 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.
>
>