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monetary damages.

In answering that question in the

negative, the court emphasized the state's lack of "possession" of the fish and drew a distinction between the state's powers as a "sovereign" and as an "owner" of wildlife, a distinction which it attributed to Missouri v. Holland and Toomer v. Witsell.85/ Since, in its view, possession was a prerequisite of ownership, and ownership was necessary to support an action for damages, the state, having neither, could not maintain the action.86/

The Agway decision has been criticized for its emphasis on possession, a "judicial tool used to settle disputes between individuals of equal stature" which need not be used to circumscribe the powers of a state in its sovereign capacity. 87/ More fundamentally, the Agway decision offers only a perfunctory analysis of the Toomer and Missouri v. Holland decisions on which

85/

86/

87/

334 U.S. 385 (1948). The Toomer case is described in de-
tail in Chapter Three infra at text accompanying notes 12-
17. Briefly, it struck down a state regulatory scheme that
discriminated aginst out of state commercial fishermen.
In so doing, it described the state ownership doctrine as
a "fiction." Id. at 402.

In direct response to the Agway decision, the Pennsylvania
legislature passed a law in 1968 which expressly declared
the state to have a "proprietary ownership, jurisdiction
over and control of fish . . . achieved through the con-
tinued expenditure of Commonwealth funds and efforts to pro-
tect, perpetuate, propagate and maintain populations of
fish" and authorized civil suits in trespass against "per-
sons who unlawfully or negligently kill or destroy" the
same. Pa. Stat. Ann. tit. 30 $202.1 (Purdon, Supp. 1976).
In 1974, the provision was amended so as to encompass not
merely fish but also all aquatic organisms, amphibians, and
reptiles. To date, there are no reported decisions constru-
ing the 1968 law, and thus the question whether the state
may legislate for itself the type of "ownership" found lack-
ing in Agway has not been presented.
Comment, Animals Ferae Naturae

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Commonwealth not Permitted to Recover Damages in Trespass for Negligent Killing of Fish by Pollution, 72 Dick. L. Rev. 200 (1967).

it relies so heavily. It is certainly true, as has already been demonstrated here, that Missouri v. Holland substantially qualified the state ownership doctrine. However, it did so in the context of delineating the states' authority vis-a-vis the federal government, and did not consider the wholly different question of state authority vis-a-vis private activity.88/

The Agway decision was accepted uncritically by the North Dakota Supreme Court in State v. Dickinson Cheese Co., a factually similar case. 89/ However, in California v. S.S. Bournemouth, a case brought in federal court, the possibility of a different outcome was strongly suggested. 90/ In that action, the California Department of Fish and Game sought to recover monetary damages resulting from an oil spill in the state's waters. In ruling on a pretrial motion, the court stated that "[w]hile here the alleged injury was to the water itself, and possibly the marine life also, the efforts to distinguish between various types of property would serve no useful purpose."91/ Despite the court's suggestion that recovery for damage to marine life would be appropriate, however, the damages ultimately awarded were described as being equivalent to the cost of "cleanup". Whether "cleanup" included any wildlife restoration efforts is not revealed in the reported decisions.

88/

Similarly, although Toomer considered the question of state
authority to regulate private activity pertaining to wild-
life, the limitation which it imposed on state regulation
derived not from the state's lack of possession of the wild-
life, but rather from express constitutional command.
200 N.W. 2d 59 (N.D. 1972).

89/

90/

91/

307 F. Supp. at 928.

307 F. Supp. 922 (D.C. Cal. 1969), judgment granted 318
F. Supp. 839 (C.D. Cal. 1970).

In Maryland v. Amerada Hess Corp.92/ and Maine v. M/V Tamano,93/ the courts went a step further in recognizing the right of states to seek monetary damages for injuries to wildlife. The states' complaints charged that oil spills had irreparably damaged their waters and the life therein. The defendants sought to have the complaints dismissed because the state did not have a "property interest" in such waters or aquatic life. Both courts rejected the contention on the basis that the states' public trust responsibilities gave them "technical ownership."94/ The Maryland court declared that "if the State is deemed to be the trustee of its waters, then, as trustee, the State must be empowered to bring suit to protect the corpus of the trust i.e., the waters

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for the beneficiaries of the trust i.e., the public."95/

Both the Amerada Hess and Tamano cases were finally settled out of court. Accordingly, the courts never faced the question of what damages, if any, could be recovered, or how they were to be measured. That, of course, is the next major hurdle to be cleared once it is established that a state has authority to sue for monetary damages for loss of its wildlife. The most interesting case to consider that issue is an unreported Tennessee decision, State of Tennessee ex. rel. Goodrich v. Riggan.96/

In the Riggan case, Tennessee brought suit against an individual whose negligent application of an herbi

92/

350 F. Supp. 1060 (D. Md. 1972), motion for relief denied, 356 F. Supp. 975 (D. Md. 1973).

357 F. Supp. 1097 (D. Me. 1973).

The concept of "technical ownership" was taken from Justice
Frankfurter's concurring opinion in Toomer.

93/

941

95/

350 F. Supp. at 1067.

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cide caused the death of at least eleven deer. On instructions from the trial judge to consider only "the average cost per deer", the jury awarded a verdict in the amount of $1,119, an amount determined to be that which would have been paid for the deer in 1950, when they were last lawfully sold in the state. The state has appealed, claiming error in the trial judge's instructions on the damage issue. The state claims that it is entitled to recover damages which will fully compensate it for the loss of the "aesthetic, ecological and recreational worth"97/ of the deer, a value which the state's expert witnesses estimate to be $2,500 per deer. The decision of the appellate court, if it accepts the state's position, could set a precedent of enormous potential consequences, because it would, by necessary implication, extend to non-game and non-commercially utilized wildlife.

While the preceding cases represent a significant development which may give further content to the doctrine of state ownership of wildlife, there are still some rather substantial legal and conceptual obstacles with which these cases must reckon. That is, even if one assumes that a state is entitled to sue for injuries done to its wildlife and that the amount of those injuries can be quantified in dollar terms, there is still the very fundamental question of what standard of care is to be required of persons whose actions cause those injuries. Because the common law concepts of "negligence" and "strict liability" have evolved with reference to the reasonableness of risks posed to humans or their private property, it is very difficult to translate those concepts into situations involving

97/ Assignments of Error and Brief of Appellant, at 28.

risks to wildlife.98/ No case illustrates the problem better than State v. Jersey Central Power & Light Co.99/

In Jersey Central, the state brought an action as parens patriae for the death of about 500,000 menhaden resulting from the operation of defendant's nuclear power plant. For purposes of cooling its condensers, the plant drew water from a nearby river through an intake canal, circulated it, and then discharged it through a canal into another river. The discharged water was, of course, substantially warmer than the water taken in. As a result, menhaden remained in the discharge area throughout the year, rather than migrate to southern waters in the winter. In mid-winter, the plant was forced to shut down its generators for a few days. It continued, however, to pump water through the plant, although the discharged water was no longer being warmed. The result was a precipitous drop in the water temperature in the discharge area, causing the massive die-off of menhaden there.

The trial court, citing Amerada Hess, but in fact going considerably beyond it, declared that "[t]he State has not only the right but also the affirmative fiduciary obligation to ensure that the rights of the public to a viable marine environment are protected and to seek compensation for any diminution in that trust

98/ The issue raised here is related to those raised by Christopher Stone in his provocative article, Should Trees Have Standing Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972). Stone's central thesis, that certain natural objects and living things should have certain legally cognizable rights, has been given an inventive, and possible very practical extension in Reed, Should Rivers Have Running? Toward Extension of the Reserved Rights of Doctrine to Include Minimum Stream Flows, 12 Idaho L. Rev. 153 (1976).

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