only a sufficient, and not a necessary basis for action under the Property Clause. While noting that "the furthest reaches of the power granted by the Property Clause have not yet been definitively resolved," the Court declared that that power "necessarily includes the power to regulate and protect the wildlife living there."74/ The Court's holding was a firm ratification of the controversial view expressed by Interior's Office of the Solicitor twelve years earlier. Moreover, adverting to issues raised but not definitively resolved fifty years earlier in Shauver and McCullagh, the Court observed that "it is far from clear. that Congress cannot assert a property interest in the regulated horses and burros superior to that of the State."75/ 3. The Federal Commerce Power The Kleppe decision and Missouri v. Holland clearly establish the Property Clause and the treaty-making power as sound sources of authority for the development of a body of federal wildlife law, notwithstanding the state ownership doctrine. A third source of federal authority, the power to regulate interstate commerce, has a more uncertain relationship to the state ownership doctrine. This uncertainty stems largely from Geer, which cast considerable doubt on the federal power under the Commerce Clause. However, Geer involved a question of the validity of state action rather than federal action. Moreover, the holding in Geer was nar 741 96 S. Ct. at 2291-92. 75/ Id. at 2290. It is puzzling that after seemingly freeing rowed considerably in Foster-Fountain Packing Company v. Haydel, which held that a state terminates its absolute control over the utilization of wildlife once it permits part or all of such wildlife to enter the stream of commerce.76/ Nevertheless, there is no Supreme Court decision spelling out the scope of the federal wildlife regulatory power conferred by the Commerce Clause. As has been previously described, the district court decisions in Shauver and McCullagh rejected claims that the Commerce Clause authorized the Migratory Bird Act of 1913. On the other hand, subsequent appellate level decisions suggested strongly that the Migratory Bird Treaty Act could be sustained as a valid exercise of the commerce power wholly apart from the treaty power.77/ This conclusion was based upon the migratory character of the birds, and relied in large part upon the post-Holland case of Thornton v. United States, which held that grazing cattle which wandered freely across state lines were subject to federal regulation.78/ If a federal power over wildlife can be based on the interstate movements of the animals themselves, then it arguably can find support in the interstate movements of those who utilize wildlife. The Secretary of the Interior made such an argument in Kleppe v. New Mexico, relying on the fact that such animals "are objects of interest to amateur students of nature and professional scientists, who travel in interstate 76/ 77/ 278 U.S. 1 (1928). See, e.g., Cerritos Gun Club v. Hall, 96 F.2d 620 (9th commerce to observe and study them."79/ Although the Court had no occasion to pass upon this claim, it has some indirect support in decided case law. In Brown v. Anderson, for example, an Alaska fishing law was held to be an unlawful burden on interstate commerce because many of the fishermen it affected were from other states and moved in interstate commerce.80/ Despite the uncertainty that still clouds the scope of federal authority to regulate wildlife under the Commerce Clause, there is little reason to believe that the authority it confers is of any lesser stature than that conferred by the Property Clause. Accordingly, federal regulation of wildlife pursuant to the Commerce Clause is probably unrestrained by the state ownership doctrine, notwithstanding Geer. In fact, if the assertion that the state ownership doctrine is a bar to federal wildlife regulation has any validity at all, it has received no authoritative judicial support since the 1912 decision in The Abby Dodge, a decision which, though never overruled, has been given a quiet internment.81/ 79/ 80/ 81/ Brief for Appellans at 21. 202 F. Supp. 96 (D. Alas. 1962). The fact that the fisher- Coggins & Hensley, supra note 57 at 1139-43, suggest a From the foregoing, it is clear that the Constitution, in its Treaty, Property, and Commerce clauses, contains ample support for the development of a comprehensive body of federal wildlife law, and that to the extent such law conflicts with state law, it takes precedence over the latter. That narrow conclusion, however, does not automatically divest the states of any role in the regulation of wildlife. Rather, for reasons both of pragmatism and of political comity, it is clear that the states will continue to play an important role either as a result of federal forbearance or through the creation of opportunities for the states to share in the implementation of federal wildlife programs.82/ Beyond that, however, the state ownership doctrine, in tandem with the public trust doctrine from which it grew, may provide the basis for a state role in wildlife regulation quite unlike that which it has traditionally played. That possibility is the subject of the concluding section of this chapter. D. New Directions for State Regulation: An What the doctrine of state ownership of wildlife has traditionally been thought to authorize, in the absence of affirmative federal regulation or express constitutional restraint, is state regulation of private activity directly pertaining to wildlife within state borders. A smattering of cases within the last decade 82/ Compare the respective roles of the state and federal governments in the implementation of the Federal Aid in Wildlife Restoration Act (see Chapter Eight infra), the Sikes Act Extension (see Chapter Six infra) and the Marine Mammal Protection Act (see Chapter Eleven infra). suggests the emergence of a wholly new use of the doctrine, a development which may breathe new life into it. These cases have explored the question of what rights the states may have, as a consequence of both the state ownership and the public trust doctrines, with respect to activities which, though not directly pertaining to the taking or utilization of wildlife, nonetheless have a substantial and adverse effect upon wildlife. Principally, these cases have considered whether states may recover monetary damages for losses to wildlife resulting from pollution of the environment.83/ One of the first of the recent cases of this variety was a Pennsylvania state court decision, Commonwealth v. Agway, Inc. 84/ In that action, the state sued an allegedly negligent polluter of a stream to recover the commercial value of some 72,000 fish whose deaths were attributed to the defendant's pollution. In the view of the Pennsylvania court, the controlling question was whether the state's "property interest" in the fish was sufficient to support an action for 83/ The rights considered here are those which may be asserted at common law, rather than those created by special statute. State legislation like the Florida Oil-Spill Prevention and Pollution Control Act, which imposes strict liability for "all costs of cleanup or other damage" resulting from oil spills, Fla. Stat. Ann. §376.12, was upheld by the Supreme Court in Askew v. American Waterways Operators, Inc., 411 U.S. 325 (1973). Such general legislation, however, seldom describes with particularity the sort of "property" for which damage recovery is authorized, or spells out how its value is to be measured, thus leaving open the very questions that are most important in the common law actions. 84/ Nor do the rights considered here include the rights of private parties to sue for injuries to wildlife in which they may have a "property" interest. For a discussion of that problem, see Comment, Oil and Oysters Don't Mix: Private Remedies for Pollution Damage to Shellfish, 23 Ala. L. Rev. 100 (1970). 210 Pa. Super. 150, 232 A. 2d 69 (1967). |