PART ONE

THE LEGAL FRAMEWORK

The tradition of wildlife regulation is firmly rooted in Anglo-American law. Notwithstanding that long history, disputes about the proper scope of such regulation and in particular about which governmental body is responsible for it have been frequent and recurring. In the two chapters that comprise this first Part, the constitutional foundations for state and federal wildlife regulation will be analyzed, as will certain special limitations that circumscribe that authority.

CHAPTER TWO: THE LEGAL FRAMEWORK

FOR THE DEVELOPMENT OF

FEDERAL WILDLIFE LAW

The ultimate source of authority for all governmental regulation in the United States is its Constitution. That document sets forth the respective powers and duties of the three branches of the federal government. It also expressly prohibits the states and the federal government from the exercise of certain powers. All powers not delegated to the federal government nor prohibited to the states, however, are "reserved to the States respectively, or to the people" by virtue of the Tenth Amendment to the Constitution. Thus, it is often said that the federal government is a government of enumerated powers, or a "limited" government. That saying, however, is not particularly useful analytically because the Constitution's enumeration of federal powers is often couched in the most general language. By virtue of the very generality of constitutional language, the courts, and especially the United States Supreme Court, play a pivotal role in the process of constitutional interpretation, the process by which the respective legal authorities of the state and federal governments are demarcated.

This chapter examines the constitutional bases for federal authority over wildlife. It also examines the development of the very important doctrine of state ownership of wildlife, a judicially created doctrine which has furnished the basis for repeated challenges to the exercise of federal authority. Before addressing those topics, however, the ancient origins of both state and federal wildlife regulation will be explored.

In the history of Western thought, there is an almost unbroken tradition, starting at least as early as the Roman Empire, in which wild animals, or animals "ferae naturae" as they were called, were regarded as Occupying a nearly unique status. While in their natural state, wild animals were considered to be like the air and the oceans, in that they were the property of no one. Yet unlike the air and the oceans, wildlife could become the property of anyone who captured or killed them. Apparently the only legal restriction in Rome on the right thus to acquire property in wildlife was that a private landowner had the exclusive right to reduce to possession the wildlife on his property. This restriction, however, was apparently more "a recognition of the rights of ownership in land than an exercise by the State of its undoubted authority to control the taking and use of that which belonged to no one in particular but was common to all."1/

Affirmative governmental regulation of the right to take wildlife was soon evident in feudal Europe. According to Sir William Blackstone, the eighteenth century English legal scholar whose writings influenced Anglo-American law more than those of any other individual, the origins of game regulation in Europe were the very same as those of the feudal system itself. That is, to retain the fruits of their conquest, the feudal kings and barons of Europe sought to keep weapons out of the hands of those whom they had conquered. According to Blackstone:

Nothing could do this more effec-
tually than a prohibition of hunting

1/ Geer v. Connecticut, 161 U.S. 519, 523 (1896).

and sporting; and therefore it
was the policy of the conqueror
to reserve this right to himself,
and such on whom he should bestow
it; which were only his capital
feudatories, or greater barons.
And accordingly we find, in the
feudal constitutions, one and the
same law prohibiting the rustici
in general from carrying arms, and
also proscribing the use of nets,
snares, or other engines for de-
stroying the game.2/

So too in England restrictions on hunting were very early imposed, and for similar reasons. With the Saxon invasion of England around 450 A.D., land began to be parcelled out to the nobility. Such lands as were not parcelled out became known as royal "Forests" in which the king alone had the right to hunt. The Norman conquest in 1066 brought with it a great expansion of the royal Forests. William Nelson, a contemporary of Blackstone, wrote that "William the Conqueror laid waste thirty-six Towns and Hampshires to make a Forest."3/

As the Forests expanded, so too

2/

3/

3 W. Blackstone, Commentaries *413. Blackstone's intense animosity toward Royal privilege is quite evident in his discussion of feudal game laws. Consider the following passage, which immediately follows the passage quoted in the text:

This exclusive privilege well suited the
martial genius of the conquering troops,
who delighted in a sport which in its pur-
suit and slaughter bore some resemblance
to war . . . . And indeed, like some of their
modern successors, they had no other amusement
to entertain their vacant hours; despising all
arts as effeminate, and having no other learning,
than was couched in such rude ditties, as were
sung at the solemn carousels which succeeded
these antient huntings .

Id. *414.

W. Nelson, The Laws Concerning Game (1762), quoted in W.
Sigler, Wildlife Law Enforcement 5 (1956).

did an elaborate system of Forest laws, together with special courts and officials charged with administering them.4/

The Norman conquest also witnessed an expansion beyond the Forests of the king's claimed exclusive authority to hunt. Indeed, the king soon claimed the sole right to pursue game or to take fish anywhere in the kingdom, though he frequently bestowed limited parts of that prerogative upon the favored nobility by means of various royal franchises. These included the franchises of "park" and "chase" which granted to the holder thereof the right to pursue such "superior" beasts as deer, fox and martin across his own land, in the case of the former, or across the lands of others, in the case of the latter. Yet another franchise was that of "free-warren," which authorized its holder to kill "inferior" beasts, such as fowl and hares, in a particular area, so long as he prevented others from doing so. Similar franchises applied to fishing. A right of "free fishery" gave its holder an exclusive right of fishing in a particular river. A right of "several fishery" was essentially the same, except that it applied only in those waters adjoining the lands of the franchise holder. A "common of piscary" was a non-exclusive right to fish in particular waters.5/

As the political system of England gradually evolved, so too did the system of wildlife regulation

5/

4/ Lund, British Wildlife Law Before the American Revolution: Lessons from the Past, 74 Mich. L. Rev. 49, 60-61 (1975). The descriptions of the various royal franchises discussed in the text are all taken from 3 W. Blackstone, Commentaries *38-40. It should be noted that even Blackstone conceded that the distinctions between some of the franchises were "very much confounded in our law books." Id. *40.