PROPERTY RIGHTS IN WILDLIFEwild game within state belongs to the people in their collective sovereign capacity. It is not thesubject of private ownership except in so far as the people may elect to make it so; & they may,if they see fit, absolutelyprohibit the takingof it, or traffic & commerce in it, if it is deemednecessary for protection or preservation of public good.ownership of wild animals is in state, not as a proprietor but in sovereign capacity asrepresentative & for benefit of all its people in common.no private right in a citizen to take fish or game, except as either expressly given or inferentiallysuffered by state. No person shall at any time/manner acquire any property in, or subject to his dominion or control, any of the game birds/ animals/fish, or any parts thereof, of those herein mentioned, butthey shall always & under all circumstances be & remain property of state. Neither the States nor Fed Govt has title to these creatures until they are reduced to possession by capture. It is important to its people that State have power to preserve & regulate exploitationof important resources. Under modern Commerce Clause analysis, the question is whether Statehas exercised its police power in conformity w/ federal laws & Constitution.food fish of state are sole property of the people & the state, acting for the people, is dealing w/its own property, over which its control is as absolute as that of any other owner over his property.Where the violation of a § designed to protect the state's property causes injury to that property,state or a responsible exec agency of state has standing to seek compensation for injury.COMMERCE CLAUSECongress shall have Power to regulate Commerce among the several States, reflected a centralconcern of Framers that, in order to succeed, the new Union would have to avoid the tendenciestoward economic Balkanization.authorization for congressional action / restriction on permissible state regulationA State is w/out power to prevent privately owned articles of trade from being shipped & sold ininterstate commerce on the ground that they are required to satisfy local demands or b/c they areneeded by the people of State.Congress may act under Commerce Clause to achieve non-economic ends thru the regulation of commercial activity.

Wildlife Law Outline - Prof. Rohlf - Spring 2008 - Lewis & Clark Law School

regulation of commercial land development, quite apart from the characteristics or range of thespecific endangered species involved, has a plain & substantial effect on interstate commerce.Where a general regulatory § bears a substantial relation to commerce, the de minimus character of individual instances arising under that § is of no consequence. much activity regulated byESA bears a substantial relation to commerce.STATE AUTHORITY TO REGULATE Wildliferight to reduce animals feroe naturoe to possession has been subject to control of law-giving power.attribute of govt to control the taking of animals feroe naturoe was vested in the colonial govts.the power passed to the states, & remains in them at the present day, in so far as its exercise may be not incompatible w/, or restrained by, the rights conveyed to the federal govt by the K.the power or control pledged in the state, resulting from this common ownership, is to beexercised, as a trust for the benefit of the people, & not as a prerogative for the advantage of thegovt, as distinct from the people, or for the benefit of private individuals as distinguished fromthe public good. the state represents its people, & the ownership is that of the people in their united sovereignty.The state may exercise the police power wherever the public interests demand it, & in that particular a large discretion is necessarily vested in the legislature to determine, not only whatthe interests of the public require, but what measures are necessary for the protection of suchinterests.To justify the state in interposing its authority in behalf of the public, it must appear, 1, that theinterests of the public gen., as distinguished from those of a particular class, require suchinterference; &, 2, that the means are reasonably necessary. for the accomplishment of the purpose, & not unduly oppressive upon individuals. police power is not to be limited to guarding the physical or material interests of the citizen. Hismoral, intellectual & spiritual needs may also be considered.In protecting beaver the NY Legislature did not exceed its powers. Nor did it so do in prohibitingtheir molestation.dominion of the Fish & Game Council is confined. Wildlife it regulates are limited specifically tothose species which are commonly the subjects of hunting & fishing, & even then the regulatory power is restricted. While it enjoys, in the discharge of this function, a certain flexibility permitting enlargement or limitation of the statutory designations, nevertheless the Council mustcondition such departures on the essential purpose its regs are designed to serve, the maintenanceof a plentiful supply of game & fish for recreational hunting & fishing. Notice & public hearings

Wildlife Law Outline - Prof. Rohlf - Lewis & Clark Law School

as well as scientific investigation & research must precede adoption of & any changes in coderegs & amendments thereto. statutory scheme expressly subjects any regulation, or amendmentthereto, or repealer thereof to appropriate judicial review.The govt’al interest in establishing regs to ensure a plentiful supply of game animals for consumption & sport is suitably furthered by placing a degree of regulatory control in the handsof a Fish & Game Council composed of sportsmen, farmers, & commercial fishermen. Openingthe Council's membership to persons w/ differing philosophies is not a constitutional necessity.Altho States have an interest in regulating & controlling those things they claim to "own,"including Wildlife, it is not absolute. States may not compel the confinement of the benefits of their resources, even their Wildlife, to their own people whenever such hoarding & confinementimpedes interstate commerce.PUBLIC TRUST DOCTRINEBy the law of nature these things are common to mankind: the air, running water, the sea & theshores of the sea. From this origin in Roman law, the English common law evolved concept of public trust, under which the sovereign owns all of its navigable waterways & the lands lying beneath them as trustee of a public trust for the benefit/people. The state acquired title as trusteeto such lands/waterways upon its admission to the union; from the earliest days its judicialdecisions have recognized & enforced the trust obligation.state's authority as sovereign to exercise a continuous supervision & control over the navigablewaters of the state & the lands underlying those waters. corollary rule that evolved in tideland &lakeshore cases barring conveyance of rights free of the trust except to serve trust purposescannot apply without modification to flowing waters. The prosperity & habitability of much of this state requires the diversion of great quantities of water from its streams for purposesunconnected to any navigation, commerce, fishing, recreation, or ecological use relating to thesource stream. The state must have the power to grant non-vested usufructuary rights toappropriate water even if diversions harm public trust uses. Approval of such diversion withoutconsidering public trust values may result in needless destruction of those values.[usufruct = a legal right to use & derive profit from property belonging to someone else providedthat the property is not injured in any way]state's proprietary interest in its fish - state holds its title as trustee for the common good. In U.S., the public trust is not limited by the reach of the tides, but encompasses all navigablelakes & streams.If the public trust doctrine applies to constrain fills that destroy navigation & other public trustuses in navigable waters, it should equally apply to constrain the extraction of water that destroysnavigation & other public interests.

Wildlife Law Outline - Prof. Rohlf - Spring 2008 - Lewis & Clark Law School