Wildlife Law: A Coming of Age

Dale D. Goble and Eric T. Freyfogle

Dale Goble is Margaret Wilson Schimke Distinguished Professor of Law at the University of Idaho. Eric Freyfogle is Max L. Rowe Professor of Law at the University of Illinois.

[33 ELR 10132]

For years, individual law professors have offered courses in wildlife law. Many of the courses have centered on the Endangered Species Act (ESA) or on the preservation of biological diversity. Others have considered the subject more broadly, attending to issues of the allocation of power within the federal system, to wildlife-related problems on federal lands, or to issues arising under state game laws. In January 2002, wildlife law came of age with the publication by Foundation Press of the first casebook covering the subject.¹ We authored that book, and in doing so took on the challenge of assessing how the subject might best be bounded and structured.

In compiling the book, we cast our net widely, drawing upon the full range of wildlife-related legal materials coming from local and state governments, Indian tribes, the federal government, and international bodies. Because wildlife law has such a long but little-known history, we drew extensively upon the field's rich legal background. Because people value wildlife in many ways and for many purposes, we also sought to cover the full range of legal problems that wildlife posed, from tort claims based on spider bites, to disputes over subsistence fishing rights and oyster beds, to claims that mourning doves are not "game" birds, to tribal efforts to enforce off-reservation hunting rights, to conflicts over critical habitat losses on public and private lands. Inevitably our efforts at inclusiveness resulted in a big book—1,500 pages despite substantial cuts at the page-proof stage. No instructor, we knew, could cover all the topics. We therefore arranged our materials into distinct chapters, usable (we hope) in nearly any combination.

Because our casebook is the first full-length effort to survey wildlife law, the editors of the Environmental Law Reporter invited us to piece together excerpts that, in combination, offer a sense of the field as we perceived it. The assignment proved difficult, both because the subjects covered in our book were far too diverse to summarize briefly and also because our years of research had yielded, we thought, a considerable number of rich and intriguing nuggets. Inevitably the excerpts here only highlight some of the key issues that were explored in our text.

The initial excerpt comes from the preface; it provides a broad perspective on the field and why it is central to the larger body of law governing the ways people live on land. The next excerpts address two core issues: the ways in which the states "own" wildlife and the complex relationship when publicly owned wildlife abides on privately owned land. Another excerpt sketches an important strand of the English common-law background that undergirds American wildlife law. The remaining excerpts sample more particular topics that we hope are both provocative and valuable.

Preface

In recent decades, natural resources law, environmental law, and land use planning have all come to address fundamental questions about how people draw sustenance from the larger community of life. Each of these fields is now infused with concerns about ecological interconnection, sustainability, and the dependence of human life and human enterprise on healthy natural systems. Particular resource-use rights, once defined with an eye toward efficiency and fairness, now pay equal attention to the effects of extraction and harvesting on water, soil, and other life forms. Environmental law, once focused on direct threats to human health, now is concerned with assaults on nonhuman life and disruptions of ecological processes. Land use planning, once confined to cities and suburbs, has spread across the landscape, focusing on places of critical ecological concern.

At the confluence of these trends is the centuries-old law of wildlife.

Anglo-American jurisprudence has long assigned a prominent role to wildlife. Wild animals held social and symbolic, as well as economic value. Game law reflected and solidified class distinctions; fishing rights decided who could use waterways and how; competing claims to wandering animals highlighted the difficulties of separating sovereign and proprietary powers—and, in time—reconciling landowner rights with the public's ownership of the wild members of the animal kingdom.

Traditional wildlife concerns remain alive today, in disputes over fish, game, and marauding mammals. Linked to those issues, however, are newer, broader concerns about ecosystems, biodiversity, and the quality and sustainability of human life. Wild species are important today, not just because of their direct and indirect value to humans, but because they provide a focal point for a wide array of concerns about how humans live on the land. To manage land to protect biodiversity is to address, along the way, nearly the full range of environmental concerns raised by human land and resource use practices. Added to the mix—and demanding increasing attention—are claims that wild animals possess intrinsic value and, as such, deserve respect apart from their contributions to human welfare.

Wildlife law has come of age.

Our book is so bulky largely for four reasons. First, we draw liberally upon the subject's rich history, in law and culture. Without that history, we believe, there can be no firm understanding of the subject. Second, animals are living entities, organized into shifting, complex ecological systems; [33 ELR 10133] from the first page, biology plays a critical role in our story. Third, moral sentiments and ethical values have expanded to attend to the plight of particular animals, to species, and to the healthy functioning of communities. Ethical concerns, too, appear here as a key issue.

Finally—and perhaps most importantly—we have, in effect, combined several wildlife law books into one, to give instructors freedom to tailor their courses as they see fit.

Foundational issues. At the base of wildlife law are fundamental principles dealing with the private and public interests in animals, including the state ownership doctrine, the rule of capture, the complex links between wildlife and private land, and the rules governing the nature and duration of private rights after capture.

Biodiversity. Many instructors are likely to focus their courses on the conservation of biodiversity. Chapters 12-14, totaling over 400 pages, cover the subject in some detail, with ample consideration of the science, ethical, and policy implications. When combined with materials from Chapter 1-3 and 5, the casebook provides a rich examination of how biodiversity concerns interact with the common law.

Federal lands/western issues. Given the particular importance of wildlife on public lands and in the West generally, we offer extensive materials to tailor a wildlife-related course focused on public lands, fisheries, and tribal harvesting rights.

State fish and game administration. As law has come to infuse all aspects of wildlife management, wildlife students are seeing increasing need to study law. (One of us in recent years has had more non-law students take his wildlife law course than law students.) To meet the particular needs of such students, we have included materials on many practical aspects of fish and game management.

Fisheries. Instructors interested in freshwater and ocean fisheries should find our coverage, we hope, more than adequate.

Although wildlife law is important and will remain important for many reasons, the central core of the field, we sense, is shifting significantly. Even a generation ago, a course on wildlife law would have focused on wildlife as a distinct natural resource, subject to exploitation and conservation in ways similar to other natural resources. Looking ahead, we see a much different focus: on wildlife as the central, nonhuman element in the ecological communities where humans live and that they help compose. Wildlife is becoming a dominant strand—in many settings, the dominant strand—of large-scale land use planning. Most disputes over public-lands management now deal with the impacts of human activities on wild species. Indian tribal issues are in few settings more divisive than in the arena of off-reservation fishing and hunting rights, particularly in the salmon regions of the Northwest. Water-rights disputes everywhere—not just in the West—increasingly turn on the effects that diversions, pollution, and blockages have on natural aquatic systems.

To conserve biodiversity is to maintain landscapes where people, too, can thrive.

A final confession: though the length of this casebook is justified, we hope, by the breadth and importance of its subject, a contributing factor, we admit, is that wildlife cases are simply delightful to read. The human drama in them is matched by few other fields. Then there is the wildlife itself, the living creatures that run, slither, fly, crawl, burrow, and creep across our pages. And the cast we have assembled here is large indeed, from spiders to steelheads, mussels to manatees, to beavers, bees, bison, boars, and burros.

In our admitted biased view, no subject in the curriculum is more enjoyable to teach—and to learn.

The English Background

A long, foundational chapter in our book explores the rules that govern wildlife located on private land. We set the stage for this exploration by digging into the complex English record on the subject, beginning with the forest laws promulgated by Norman and Angevin rulers. In this excerpt we summarize the main strands of this complex background. We focus attention on the English legal heritage that colonists brought with them when they journeyed to North America and on the common-law understanding of the rights landowners possessed vis-a-vis wildlife.

Wildlife was owned by the King/state in a prerogative or sovereign sense (and, in the case of royal animals,² in a proprietary sense as well). This ownership right was more than simply a power to regulate private activities by landowners and hunters. When the creators of English law—be it King, Parliament, or court—decided who could hunt and where, they were making a positive allocation of public property rather than simply regulating private conduct.³

The state also held the power to protect wildlife, both by banning or limiting takes and by restricting habitat alteration.⁴ Although English courts did not use the term "easement" to describe the arrangement, the state as owner of wildlife in effect held an easement on lands used by wildlife since it held a power to prevent the landowner from interfering with its rights in the wildlife. The scope of the easement—and the powers and duties it included—were far from clear.

Landowners also had no right to hunt that they could assert against the state. Although landowners were normally permitted to take animals other than game—particularly those that caused harm—there is no evidence that they held protected rights to do so.⁵

In addition, landowners were obligated to bear the costs of having wildlife on their lands. Protected wildlife was able not only to cross private land but also to live on it. Furthermore, the state had the power to require landowners to protect wildlife habitat as a means of sustaining game populations.

Although it was generally acknowledged that the King had the power to authorize landowners to hunt on their holdings, [33 ELR 10134] the state's power to authorize one person to hunt on the lands of another was unclear. Initially, the King held the prerogative power to create forests and to permit others to hunt in them⁶; the King also had the power to grant chases in the lands of others⁷; there seems to have been no power—or the power went unexercised—to grant warrens in another's land. These powers were resisted by land holders and had been curtailed if not abolished by the time of the American Revolution.

By the time of the American Revolution the power to grant hunting franchises had fallen into desuetude as the landed gentry increasingly turned to the more flexible writ of trespass and to Parliament to define rights in wildlife on their lands. Thus, although they did not own any wildlife until lawful capture took place, they were able to exclude others from hunting on their lands—with the exception of persons pursuing varmints.⁸ Finally, landowners could seek redress against persons who engaged in nuisances that disrupted their lawful attempts to attract and capture wildlife.⁹

The State as Sovereign, Proprietor, and Trustee

As the following excerpts reveal, wildlife law continues to be defined in essential ways by the unique mix of sovereign and propriety powers that states possess over wild creatures. Although it is not accurate to say that states "own" wild animals in an ordinary proprietary sense, it is also inapt to say that states merely have police powers over them. The subject is far more subtle and complex. Today, courts commonly use trustee language to describe the state's unusual role in this area. The details of the wildlife trust remain vague, however, particularly in regard to state powers and responsibilities.

Wildlife law does not easily fit into familiar categories. On one hand, animals have always occupied a unique niche in human consciousness: they are often the symbols that people our thoughts—the Brothers Grimm wolf at the door, Reynard the crafty fox of medieval market dramas,¹⁰ and the magical, ambiguous coyote of so many Indian stories. Indeed, Paul Shepard has argued that "the human species emerged enacting, dreaming, and thinking animals and cannot be fully itself without them."¹¹

On the other hand, the law has viewed animals as potential property—recall the fox carcass that figured so prominently in Pierson v. Post.¹² Wildlife excited the imagination of the continental jurists such as Hugo Grotius,¹³ Emerich de Vattel,¹⁴ and Samuel, Baron von Pufendorf¹⁵ because, as unowned stuff, wild animals were one of the few remaining examples of the "state of nature," that theoretical, mythical construct of the human world before society came into being. Wildlife thus was a speculation on the origin of property.

But wildlife is an uncommon sort of property. Not only is it alive, it is also dependent for its continued survival on a forebearance that history demonstrates is uncommon—for wildlife, as unowned, vagrant stuff subject to capture, requires the tolerance of everyone who might kill it or destroy its habitat. Hence the final component of wildlife law: the complex relationship between wildlife and the state—or, more accurately, the relationship between individuals and the state in relation to wildlife.

As common-law judges explored and developed these relationships, they drew upon the language of property and sovereignty. The King's Bench in The Case of Swans¹⁶ held that swans are royal fowl because they are pure and, therefore, all unbranded swans "do belong to the King by his prerogative."¹⁷ The court in The Case of the Royal Fishery of Banne¹⁸ offered a similar rationale: every river "is a royal river, and the fishery of it is a royal fishery, and belongs to the king by his prerogative" because "such river … is said to be a branch of the sea so far as [the sea] flows" due to the fact that "the sea is not only under the dominion of the king … but it is also his proper inheritance."¹⁹

As these statements suggest, property and sovereignty were metaphorically and legally joined in wildlife. The King as sovereign was the owner of wildlife—at least, he owned all the wildlife that counted: those species that qualified as fish and game. Or so the common law was understood in America as demonstrated in Cawsey v. Brickey²⁰:

Under the common law of England all property right in animals ferae naturae was in the sovereign, for the use and benefit of the people. The killing, taking, and use of game was subject to absolute governmental control for the common good. This absolute power to control and regulate was vested in the colonial governments as a part of the common law. It passed with the title to game to the several states as an incident of their sovereignty, and was retained by the states for the use and benefit of the people of the states, subject only to any applicable provisions of the federal Constitution.²¹

This passage reveals the difficulty the court had in describing the government's relationship to wildlife. In England, courts would have spoken in terms of the Crown's "prerogative," but royal prerogative was an anathema in America. Hence the struggle to find a different terminology. American courts were familiar with two ways to talk about power over things: there was proprietary power, embodied in concepts of property and title; and there was sovereign power, represented by the government's authority—granted by the sovereign people—to regulate conduct. In the case of wildlife, however, neither of these powers alone seemed quite right. Sensing that inadequacy—and searching for a better description—courts mingled the categories. As the [33 ELR 10135] decision in Cawsey illustrates, American courts recognized the expansive nature of government's role by vesting it with both "title to game" and "absolute governmental control." But this blended power also was not quite right; the combined categories gave government too much discretion. Unlike a private owner who might use wildlife solely for personal gain, when the government was the owner its powers were constrained by the public interest. Thus, its proprietary rights could be exercised only "for the use and benefit of the people of the states" and not for the benefit of an individual or special group. The government's "absolute regulatory power" was similarly limited by the public good. As the Cawsey decision demonstrates, the courts sought to confine the broad powers vested in government by impressing those powers with duties drawn from property law. The metaphor they employed to describe this mixture of sovereign and proprietary powers was the trust: the state was a trustee for the people and state sovereign ownership was a public trust.

This odd mixture of sovereign and proprietary power remains vitally relevant because it continues to undergird wildlife law. It also accounts—in part at least—for the law's unique structure. Consider: in what sense does government, on behalf of the people, "own" wildlife that has not passed into private hands? Is it still meaningful to speak of the government's powers as a form of ownership, or is such language anachronistic, the confusing baggage from a time before courts had developed the jurisprudence of regulatory power? If the state does in some sense own wildlife, is its authority limited beyond the ever-present obligation to act in the public interest? Can the state, for example, treat wildlife as it does other public property? States have nearly unlimited power over public property; do they have the same flexibility with respect to public property interests in animals? Consider also wildlife habitat and food. If the state owns wildlife what limits does its ownership impose on private landowners? Can landowners use their lands as they choose, displacing and indirectly killing wildlife by destroying habitat? Or, is the state's ownership an easement-like interest under which the state can limit a landowner's activities that unduly disturb state-owned animals? That is: when the government granted land to individuals while retaining ownership of wildlife, did it retain rights to continue using that land for wildlife, rights that it can enforce, not as a sovereign regulator, but as a wildlife proprietor?

* * * *

The following excerpt probes these issues further by turning to the historical record in England and 19th-century America.

From submerged lands to wildlife—the evolution of sovereign ownership and the public trust. The decisions in Banne,²² Arnold v. Mundy,²³ and Martin v. Waddell's Lessee,²⁴ were concerned with the right to harvest fish—finfish (salmon) in Banne and shellfish (oysters) in Arnold and Martin. As previously discussed, these decisions are the cornerstones of the public trust doctrine as that doctrine is applied to the beds and banks of navigable waterways.²⁵ But these cases also are the seminal decisions in the evolution of another line of precedent, one concluding that sovereign ownership and the accompanying public trust extend not only to navigable waterways and fish, but to all wildlife.

Like most foundational conclusions, this one emerged gradually. An initial step was the recognition that the state's sovereign ownership of submerged lands gave it an interest at least akin to property in oysters growing in the soil:

As to the ownership of property in oysters, while lying in the Bay of Delaware, … the judge [in the decision below] did not say, that the property was in the state of New Jersey; his words are these: "It appears satisfactorily, that causes of complaint existed, some time, concerning the destruction of oysters, which are a valuable article of food bestowed upon us by Providence, and for the preservation of which laws are usually made by states. Although, perhaps, they may not have a right of absolute property in these articles, they do, and may, nevertheless, pass regulations for their preservation." To the law, thus laid down, certainly no objection can be made. The right of preventing the destruction of fish and oysters, is a most salutary one, and has been exercised by all states and nations.²⁶

Sovereign ownership was next applied to swimming fish as well as shellfish. In Dunham v. Lamphere,²⁷ for example, Chief Lemuel Justice Shaw upheld a state statute prohibiting the use of seines within a mile of the Nantucket shore. Like his predecessors, Shaw drew upon Vattel:

like other valuable commodities, fish, as well swimming as shell fish, are susceptible of being property; and every such things, says Vattel, Bk. 1, §§ 234, 235, is considered as belonging to the nation that possesses the country, as forming part of the aggregate mass of its wealth; those not divided are called public property.²⁸

The final step was to extend state sovereign ownership to all wildlife—a step that seemed natural since fish and wildlife were treated the same by common-law²⁹ and civilian writers.³⁰ The effect of this final step is apparent in a decision by the Minnesota Supreme Court. In State v. Rodman,³¹ the defendant, who had been convicted of possessing game after the close of the open season even though the prosecutor acknowledged that it had been killed within the open season, argued that the statute was unconstitutional:

It is claimed that the act in question proceeds upon the plan of first declaring all wild game and fish within the state to be its absolute property, and then, upon that basis, providing how, and under what limitations, persons may acquire a qualified right of property in them from the state. Counsel for defendants contend strenuously that the state has no proprietary right in animals ferae naturae, and can acquire none by mere legislation; that such animals are bona vacantia, in which a right of property can be acquired only by reducing them to possession. If it was the intention of the legislature to declare all wild game the property of the state, in a proprietary sense, that feature of the law might be subject to counsel's criticism; [33 ELR 10136] but that question is not material here, for it is not necessary to resort to any such doctrine as the source of the power of the state to adopt police regulations for the preservation of wild game within its borders.

We take it to be the correct doctrine in this country that the ownership of wild animals, so far as they are capable of ownership, is in the state, not as proprietor, but in its sovereign capacity, as the representative, and for the benefit, of all its people in common. The preservation of such animals as are adapted to consumption as food, or to any other useful purpose, is a matter of public interest; and it is within the police power of the state, as the representative of the people in their united sovereignty, to enact such laws as will best preserve such game, and secure its beneficial use in the future to the citizens, and to that end it may adopt any reasonable regulations, not only as to time and manner in which such game may be taken and killed, but also imposing limitations upon the right of property in such game after it has been reduced to possession. Such limitations deprive no person of his property, because he who takes or kills game had no previous right of property in it, and, when he acquires such right by reducing it to possession, he does so subject to such conditions and limitations as the legislature has seen fit to impose.³²

Rodman illustrates late 19th century judicial thinking about the legal basis of wildlife conservation. Note that, while the decision introduces a new phrase—the "police power"—it still blends language about sovereignty and property. And it is this blended power that buttresses the extraordinary power the state has over wildlife that has not passed into private ownership. It is the blending of sovereignty and property that authorizes the state to decide what property rights a person will acquire in wildlife once it has been captured. In Rodman, the state banned possession of lawfully killed game beyond the fifth day after the end of the open season. The court describes this, not as a subsequent restriction on rights previously acquired by a lawful hunter, but instead as integral to the property rights the hunter obtains in the first instance. A hunter, in other words, acquires something akin to a fee simple determinable, a limited possessory right in the captured game that terminates automatically five days into the closed season. The state as sovereign owner has the power to determine the interests that it will permit an individual to acquire. One reason for this approach may have been that states were ending market hunting—a step that would, in time, benefit wildlife as much or more than any other legal act. They did so by banning the sale of lawfully captured game by withholding the right to sell—a dramatic limit on property rights that would have been hard to justify as a traditional police power regulation during a period characterized by substantive due process limitations on state regulatory powers.³³

* * * *

The following excerpt from State v. Fertterer,³⁴ provides a good look at the current status of the state ownership doctrine as it lives and breathes in decisions of state supreme courts. Readers who imagine that the U.S. Supreme Court somehow ended the doctrine need to dig more deeply.

A brief historical analysis shows that beginning with Geer v. Connecticut,³⁵ the Court recognized that the states had a right to regulate the taking of game within their borders. This regulatory power was derived from the states' "title ownership" in the game, and also from the states' police power. In Geer, the Court determined that a Connecticut law prohibiting the taking of game birds outside its borders did not violate interstate commerce. That court likewise relied on the title ownership theory in subsequent federal cases including Baldwin v. Montana.³⁶ In Baldwin, the Court recognized Montana's interest in regulating the taking and preserving of game animals within its borders. It held that Montana's disparate licensing fees between resident hunters and non-resident hunters did not violate the privileges and immunities clause of the Constitution or the equal protection clause. In the 1979 case of Hughes v. Oklahoma,³⁷ the Court concluded that an Oklahoma law which prohibited the transporting of live minnows across state lines into Texas violated the interstate commerce clause. As a part of that opinion, it expressly abandoned the title ownership theory as promulgated in Geer. The defendants argue that the Hughes decision effectively precludes Montana from convicting them of criminal mischief for destroying public property.

The state contends there are no federal constitutional questions of interstate commerce, equal protection, or privileges and immunities; and as a result, Hughes is not controlling. We agree with that contention. There is no federal constitutional issue or other federal question presented in the present case. As a result, the holding in Hughes is not controlling here. We do point out that as we compare Hughes to Baldwin, we are not certain the holding expressed in this case would be found to contradict Hughes.

Montana has long recognized that Montana has the power to regulate game animals under both a title ownership and police power theory. In Rosenfeld v. Jakways,³⁸ the court stated the rule very clearly. The state's ownership in wild game for the use and benefit of its people was affirmed in Heiser v. Severy,³⁹ and again in State ex rel. Visser v. State Fish & Game Commission.⁴⁰ In Visser, the court confirmed the state's ownership of wild game and its authority to regulate private ownership of game as long as those regulations do not violate the Constitution.

Montana's case law affirming the state's property interest in wild game is consistent with case law from other jurisdictions, including Alabama, Colorado, Indiana, Michigan, Oregon, Texas, and Washington. In State v. Gillette,⁴¹ Washington sued and recovered damages from property owners whose reconstruction of a stream bank resulted in the killing of salmon. That court concluded that Washington had standing to sue. It held: "Food fish of the state are the sole property of the people of the state …." Likewise in Collopy v. Wildlife Commission,⁴² that court upheld a regulation prohibiting hunting within a specific area. The court recognized that the ownership of wild game is in the state for the benefit [33 ELR 10137] of all the people. Finally, in Rogers v. State,⁴³ that court stated: "The authority of the state to regulate hunting … derives from the long established and well recognized principle of law that ownership of wild animals is vested in the state." See also Ridenour v. Furness⁴⁴; Wiley v. Baker⁴⁵; and Glave v. Michigan Terminix Co.⁴⁶

In accordance with the above cited Montana cases, and consistent also with Baldwin, we hold that Montana has an ownership interest in wild game held by it in its sovereign capacity for the use and benefit of the people. We further hold that under its police powers, which extend to such wild game, the state may prohibit the killing of wild game and regulate the killing of the same. We hold that wild animals are public property within the meaning of Montana's criminal mischief statute, and that Montana's interest in such public property is superior to the interest of the Fertterers.

* * * *

Although the state ownership doctrine continues to define the state's role regarding wildlife, the terms of the state's duties as public trustee remain poorly fleshed out. For two decades the leading decision dealing with the public trust doctrine has been the California Supreme Court's ruling in National Audubon Society v. Superior Court of Alpine County.⁴⁷ Although the Audubon decision focused largely on the public trust doctrine and water rights, the dispute itself arose because of the effects that water diversions were having on wild animals. Many of the court's comments about the state-as-trustee seem fully applicable to wildlife. The following excerpt examining state powers and duties as trustee highlights implications of the court's ruling.

Public trust and wildlife. The intriguing questions surrounding the public trust concern the duties or limitations that the trust imposes. Is the state under an obligation to take affirmative steps to protect the wildlife that form the corpus of the trust? Is it prohibited from authorizing actions by others that would impinge upon the corpus? The California court decided that

the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.

This meant, the court said, that

the state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. Just as the history of this state shows that appropriation may be necessary for efficient use of water despite unavoidable harm to public trust values, it demonstrates that an appropriative water rights system administered without consideration of the public trust may cause unnecessary and unjustified harm to trust interests…. As a matter of practical necessity the state may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust, see United Plainsmen v. N.D. State Water Con. Commission, 247 N.W.2d 457, 462-63 (N.D. 1976), and to preserve, so far as consistent with the public interest, the uses protected by the trust.

"It is clear," the court concluded, "that some responsible body ought to reconsider the allocation of the waters of the Mono Basin. No vested rights bar such reconsideration."

These principles are easily applied directly to the public trust in wildlife. Just as the trust in navigable waters requires the state to protect "the scenery, ecology, and human uses of Mono Lake" by reconsidering previously appropriated water rights, so the trustee's obligation to protect and preserve requires it to exercise "continuing supervisory control over" wildlife and its habitat—and "no vested rights bar such reconsideration." As the court also notes, this does not mean that wildlife trumps all other land uses: "As a matter of practical necessity the state may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust."

Fishing and Fowling in Inland Waters

To a degree not well recognized, disputes in England and the United States over the navigability of waterways rarely had to do with whether the river was open for travel and transport. Instead, they largely dealt with rights to control the fish, shellfish, and other valuable aquatic life found in the rivers. In complex ways, navigability was linked to ownership of the land underlying a water body. Land ownership, in turn, largely determined who had rights to fish. In economic terms, the right to fish was the most valuable attribute of such ownership—the profit in the profit a prendre.

The beds and banks of navigable waters in England were generally owned by the King, but the King held them as sovereign rather than proprietor. This meant, importantly, that the King's subjects had full rights to harvest fish (except royal fish) in them. Thus, disputes over navigability for title were, at bottom, questions about rights of access to wild aquatic life. When members of the public asserted that a particular waterway was "navigable," they did so to gain recognition of their public fishing rights. The same reality prevailed in the United States, which similarly linked fishing rights with riverbed ownership. Disputes over navigability and land-title issues were more about control over valuable wildlife than they were about public rights to travel or governmental powers to regulate.

Today, both state and federal laws play roles in determining waterway navigability—and hence in allocating rights over aquatic life. Waters navigable under state law are generally open to the public for fishing and (less often) fowling. Overriding that state law is the arcane body of law known as the federal navigation servitude. It is the primary—though by no means sole—body of federal law that affects private and public rights to harvest wildlife in rivers and lakes.

The navigation servitude. One important source of public rights is the federal navigation servitude, a doctrine that secures "the exercise of the public right of navigation" as well as "the governmental control and regulation necessary to [33 ELR 10138] give effect to that right."⁴⁸ The servitude "exists by virtue of the Commerce Clause."⁴⁹ It is more than simply a regulatory power. It is, as the Court has variously said, a "dominant servitude" on all submerged lands subject to it⁵⁰; "a permanent easement that [is] a pre-existing limitation" upon the title of all such submerged lands, including lands held by private owners.⁵¹ "When a navigational servitude exists, it gives rise to the right of the public to use those waterways" to which it applies.⁵²

The navigational servitude attaches to all waterways that are navigable in fact under the standard announced in The Daniel Ball⁵³ and The Montello.⁵⁴ According to the decision in The Montello, a river is navigable if it is suitable for commerce conducted by "vessels of any kind that can float upon water," including those "propelled by animal power," and "no matter what mode the commerce may be conducted."⁵⁵ When the servitude applies, it overrides the property rights of the owner of the underlying land, just as other servitudes do:

It is no answer to say that these private owners had interests in the water that were recognized by state law. We deal here with the federal domain, an area which Congress can completely pre-empt, leaving no vested private claims that constitute "private property" within the meaning of the Fifth Amendment.⁵⁶

Although the dominance of the federal servitude is plain, the scope of the public rights it protects are far less clear. The few cases that have considered the issue have either concluded or assumed that the servitude protects not only public access rights but also public fishing rights—and that it does so notwithstanding the fact that a waterway is nonnavigable under state law.⁵⁷

In the leading case, Vaughn v. Vermilion Corp.,⁵⁸ commercial fishers sought access under the servitude to canals that, although connected to navigable waterways, were non-navigable under state law and hence closed to public use. Some of the canals were entirely human constructed; others, although also constructed, were allegedly created "in part by means of diversion or destruction of a pre-existing natural navigable waterway."⁵⁹ State courts denied access. Although agreeing that human-constructed canals generally were not covered by the servitude, the Court reversed the state court with respect to the canals that destroyed or diverted naturally navigable waterways, ruling that in such waterways the navigation servitude was a federal defense to a trespass action.⁶⁰ Little if any litigation has considered to what extent the federal servitude protects public fowling rights. Such rights, however, were an integral part of public use rights in waterways navigable at law when the federal constitution was drafted.

Wildlife and Private Land in the Age of Conservation

A vital issue raised by several strands of contemporary wildlife law has to do with the status of wildlife on private land. The state as trustee owns the wildlife and plainly has broad powers to protect it. But how does such protection, particularly of valuable habitat, fit with the core institution of private property in land? If a new understanding of land-ownership is emerging in the age of conservation, what form will it take?

Our exploration of wildlife law has returned repeatedly to the issue of how the public's rights in wildlife fit with the institution of private property in land—an institution that vests strong rights in individuals yet does so because of the ways that private property supports the common good. Recall Barrett v. State,⁶¹ the 1917 New York decision in which the landowner was obliged to suffer beaver damage without compensation; the state law at issue barred, not just hunting or trapping beaver, but molesting the animal, disturbing it, or interfering with its dams or lodges. Two centuries earlier, the Queen's Bench in England had ruled in Keeble v. Hickeringill⁶² that a landowner had a right to attract wildlife onto his land and could complain of actions by a neighbor that unreasonably interfered with this activity. In Cross v. State,⁶³ the Wyoming court held that a landowner had a valid defense to the crime of killing a moose when he had tried every reasonable measure to keep the animals from damaging his land. Underlying such rulings is the general principle of sic utere—the principle that landowners have no vested right to use what they own in ways that cause harm to other landowners or to the public interest. Property law is the setting in which important and conflicting interests interact and are resolved. At times, public and private interests clash. Even more often, however, conflict arises between landowners whose land use patterns are inconsistent. In both types of conflicts, property law is called upon to resolve the disputes.

Over the centuries, the meaning of land ownership has changed—often dramatically—in response to shifting circumstances [33 ELR 10139] and values. Change has always been contested. Some interests have been favored; others disfavored—as with all legal change. Looking ahead, what changes might we expect in the context of wildlife on private land? Can wildlife conservation be pursued by tinkering with the definition of landownership in ways that either: (1) diminish the powers of landowners to harm wildlife, directly or indirectly, as in Barrett; or (2) increase the powers of landowners to complain when neighbors disrupt wildlife that would otherwise reach their lands? Would such changes—if substantial—be fair to landowners? Would they unduly interfere with the ability of property law to fulfill its other important aims—stimulating economic enterprise, protecting privacy, and providing ballast for civil states?

* * * *

A new image of landownership and wildlife? One criticism of the federal ESA has been that it imposes sometimes severe restrictions on a small number of landowners while imposing no responsibilities on all others. The same fairness issues arise under other laws and at other levels of governance: some landowners are restricted, while many are unaffected.

Is it an answer to such fairness concerns to say simply that lands differ in their natural conditions, and that the laws at issue merely—and properly—reflect those natural differences? Wetlands are not the same as dry lands; sloping lands are not the same as flat ones; rare habitat is not the same as land with common vegetation and animal communities. Could property law essentially announce: Landowners can initiate new land use activities only on lands that are naturally suited for such activities. Recall on this issue the much-debated language of Just v. Marinette County⁶⁴:

An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others….

This is not a case where an owner is prevented from using his land for natural and indigenous uses. The uses consistent with the nature of the land are allowed ….⁶⁵

According to Just, ownership rights should be shaped by the land's natural features and be limited to those uses consistent with the maintenance of those features. Is this a plausible way to reform landed property rights? Would such a scheme lead to too much vagueness and unpredictability in terms of what landowners could or could not do? Or has this idea essentially been incorporated into statutes such as Vermont's Act 250 and the California Forestry Practice Act?⁶⁶

On the other hand, might the burdens of supporting wildlife be more bearable—and politically supported—if landowner duties were spread more broadly. Is it sensible to talk about a general duty, imposed on all landowners, to make reasonable accommodations for wildlife? Could such a fair-share approach provide the baseline for determining whether a particular landowner in a particular instance was shouldering an unfair burden so that compensation would be appropriate?

The Costs of Habitat Conservation

The private land issue has been particularly knotty when landowners seek to develop their lands in ways that reduce their habitat value. Few issues in wildlife law have been more contentious—or more dominated by rhetoric poorly grounded in careful study. In particular need of greater study is the question of overall costs associated with habitat conservation, along with the related but separate question of fairness.

The difficulties of calculating overall costs. Wildlife conservation is, of course, only one of many public goals, and resources devoted to it are unavailable to help achieve other goals. Many critics, particularly of the federal ESA, argue that more attention should be paid to questions of cost, to set conservation goals more sensibly, and to apply available resources effectively.⁶⁷ The assumption underlying such arguments is that conserving all species would be extremely expensive—far more than Americans are prepared to bear—and that a more realistic assessment of costs and benefits would lead society to embrace more modest, achievable aspirations.

One limitation of such analyses is that little is known about the costs of wildlife conservation. Indeed, no settled methodology is available to make such a calculation. Consider as an extreme case the Tellico Dam, at issue in the celebrated case of Tennessee Valley Authority v. Hill.⁶⁸ So wasteful was the project, according to the calculation of the "God Squad," that it made economic sense to halt the project, even though it was more than 90% complete. When species conservation comes from halting wasteful projects, it generates savings, not costs. Consider, alternatively, the preservation of wetlands along waterways and of such important watersheds as New York's Catskill Mountains. The development of such lands can cause external harms—such as flooding and water quality degradation—that far exceed the land's development value; in such instances, preserving habitat can yield overall benefits rather than costs, even when the benefit to wildlife is ignored.

Even when less sensitive habitat is at issue—for instance, a large tract of open land at the edge of a metropolitan area—cost calculations can be difficult. Although land that is purchased as habitat costs money, from an overall, social perspective, no true expense is involved: money has merely changed hands in the form of a trade in assets. To the extent that a social cost is involved, the cost lies elsewhere. When a particular tract of land is conserved, its market value may, of course, fall precipitously. But the preservation of one tract often raises the value of surrounding land—both because the supply of developable land has been diminished and because adjacent land is made more desirable due to the protected habitat. Aside from issues of land valuation, much habitat protection yields a wide range of nonwildlife benefits, including public recreation, watershed protection, flood reduction, maintenance of soil fertility, and the like. How should these benefits be taken into account? Is it fair to begin with overall costs and then reduce them by such nonwildlife benefits to determine the net cost, if any, for protecting wildlife? Alternatively, should the full costs of [33 ELR 10140] habitat protection be attributed to wildlife, with the various collateral benefits all viewed as free?

Fairness to landowners. Without substantial research, it is hard to estimate the net costs of protecting wildlife in general and endangered species in particular. They could be substantial or they could be—save in a few situations—insignificant or even negative. What is far clearer, however, is that habitat protections, when imposed on private land, can significantly disrupt the economic hopes of individual landowners. Severely restricted land can be worth far less than land that an owner can alter at will without regard for spillover effects on other landowners and the community at large. It is this visible disruption of economic desires that draws attention, and that is often—though erroneously—cited as the "cost" of protecting wildlife. Without regard to cost, such disruptions raise serious questions of fairness, both to individual landowners, to neighboring landowners, and to the surrounding community as a whole. To what extent can a landowner be expected to make room for wildlife without compensation? When might compensation (or some other economic incentive) be appropriate? When might a burden be one that, in fairness, landowners should bear, given that wildlife populations are so often jeopardized by landowner activities?

Before-and-after comparisons of a parcel's market value would seem to provide a good measure of the economic disruption. Once again, however, the task of calculation is deceptively difficult. To estimate the pre-restriction value of property, numerous assumptions need to be made about the landowner's rights and about the presumed rights of surrounding landowners, including those whose property might compete for value in the same market. Given the longstanding sic utere limit on landowner rights—and given, also, the public's ownership of wildlife and its acknowledged power (as noted, akin to an easement) to protect that wildlife—what assumptions should be made about a landowner's development rights? Inevitably, valuation efforts are wrapped up in larger questions about what it means to own land in an era when society is placing higher value on wildlife conservation than it has in the past. Ownership norms have evolved significantly over the centuries. Should they continue to evolve in ways that reflect shifting social values, or should other tools (chiefly compensation) be used to achieve conservation aims?

Ultimately, the burdens of protecting wildlife need to be allocated fairly, either among all citizens or, in the case of wildlife harmed by habitat loss, by those responsible for causing that loss. Even if the overall costs of wildlife protection are low (or negative), fairness issues may remain. Until they are resolved, conservation measures are likely to be delayed.

* * * *

One reason regulatory approaches seem to be necessary to protect wildlife on private lands is because wildlife species typically spill across property boundaries. Many animals roam widely. Even species that do not roam are often able to thrive only when single breeding populations can inhabit numerous contiguous land parcels in a divided landscape. The management problem that arises in such a setting is in some ways the opposite of the one that Garrett Hardin highlighted in his classic essay. The Tragedy of the Commons.⁶⁹ From the perspective of wildlife management, tragedy arises, not from an undivided commons, but when a naturally integrated habitat is fragmented among numerous owners with no one in a position to consider the well-being of the whole.

The tragedy of fragmentation. Many wildlife species range over large areas. Even in the case of species that are relatively sedentary, a given population can be at risk when it is isolated genetically from other populations of the same species. For these reasons and others, much wildlife conservation needs to be planned on large spatial scales. As Aldo Leopold recognized as soon as he arrived in Wisconsin, the fragmentation of natural landscapes poses grave threats to wildlife. Landscapes divided into private parcels, or divided among various governmental entities, fall under separate management regimes. The more division that occurs, the more legal boundaries there are. And the more boundaries there are, the greater the problem of "externalities"—that is, the consequences of land use decisions by one owner that have positive or negative effects that spill across boundaries to neighboring lands. As externalities increase, land use decisions commonly deviate further and further from efficient resource allocations. Of course, an undivided landscape can be rapidly degraded if no mechanism exists to control its use—as Hardin so famously explained in his essay, The Tragedy of the Commons. And as Hardin also pointed out, the division of a landscape into private parcels can help reduce such degradation. What Hardin did not note directly—and what is often overlooked—is that the "privatization" of a landscape can yield severe problems of its own, particularly when compared—not with unregulated use—but with a well-managed commons.

When a landscape is divided into private ownership, it is not of the land but the management power over the land that is actually divided. At least initially, the landscape remains an integrated, natural whole and the wildlife ranges over it as before. The tragedy of fragmentation arises when individual landowners or land managers are given full powers to make decisions concerning their lands, with no power reserved at the level of the commons to protect wandering wildlife—or hydrological processes and other ecosystem elements that sustain the health of the whole. No person or entity retains authority to set rules governing the use of individual parcels so as to avoid harm to shared interests. Individual owners, of course, could jointly arrange to impose limits on themselves—the "mutual coercion mutually agreed upon" that Hardin considered. But transactions costs to negotiate such agreement can be high and free-rider problems (and cultural resistance) can be insurmountable. The greater the fragmentation of a landscape, the less likely it is that joint action will occur—and the greater the likelihood of tragic consequences.

At the root of this tragedy is the fact that legal power to control the landscape has been fragmented to the point where no single person or entity (or even a small group) has either the power or the economic interest to protect wildlife. In the case of a well-run commons (as opposed to the uncontrolled, open-access commons that Hardin rightfully criticized) the community as a whole retains both the power to control and the economic incentive to act. It is the [33 ELR 10141] fragmentation of the landscape, without the retention of such power at the community level, that gives rise to the tragedy of fragmentation.

In important ways, the tragedy of fragmentation is much reduced in the wildlife setting because legal power over wildlife has been retained at the commons level. Under the state ownership doctrine, lawmakers can protect wildlife from direct harms. Thus, it is wildlife habitat rather than wildlife that has been fragmented. What needs reassembly, in some fair manner, is the power to control habitat to the extent necessary to achieve desired conservation goals. To a large extent, efforts to promote wildlife management above the individual parcel level entail attempts to respond to the tragedy of fragmentation by reassembling at the community level managerial power over wildlife habitat.

The tyranny of small decisions. Fragmentation is a significant problem in part because decisionmaking is increasingly likely to fall prey to the tyranny of small decisions:

Ideally, society's problems are resolved through a system of nested levels of public decisions….

Unfortunately, important decisions are often reached in an entirely different manner. A series of small, apparently independent decisions are made, often by individuals or small groups of individuals. The end result is that a big decision occurs (post hoc) as an accretion of these small decisions; the central question is never addressed directly at the higher decision-making levels. Usually, this process does not produce an optimal, desired, or preferred solution for society.

This process of post hoc decision-making has been termed "the tyranny of small decisions" by the economist Alfred E. Kahn….

Clearly, "the tyranny of small decisions," or what might be called "small decisions effects," applies to much more than market economics. Much of the current confusion and distress surrounding environmental issues can be traced to decisions that were never consciously made, but simply resulted from a series of small decisions. Consider, for example, the loss of coastal wetlands on the east coast of the United States between 1950 and 1970. No one purposely planned to destroy almost 50% of the existing marshland along the coasts of Connecticut and Massachusetts. In fact, if the public had been asked whether coastal wetlands should be preserved or converted to some other use, preservation probably would have been supported. However, through hundred of little decisions and the conversion of hundreds of small tracts of marshland, a major decision was made without ever addressing the issue directly.⁷⁰

"One key to avoiding the problem of cumulative effects of small environmental decisions," William Odum writes, "lies in a holistic view of the world around us." He was not optimistic, however:

Few politicians, planners, or scientists have been trained with, or have developed a truly holistic perspective. Considering all of the pressures and short-term rewards that guide society toward simple solutions, it seems safe to assume that "the tyranny of small decisions" will be an integral part of environmental policy for a long time to come.⁷¹

Conservation at the Landscape Scale

For decades, leading wildlife scientists (beginning most prominently with Leopold in the 1930s and 1940s) have considered how wildlife might best be promoted in landscapes dominated by private lands. Contemporary scholars have addressed the issue in numerous writings. One particularly thoughtful essay—which we excerpt at length in the casebook—appeared in Ecology Law Quarterly in 1997. Written by Neil Gunningham and Michael Young, the essay—entitled Toward Optimal Environmental Policy: The Case of Biodiversity Conservation—proposed that biodiversity policy make flexible use of a wide range of policy mechanisms—from the informational and voluntary instruments through property-rights mechanisms, "price-based" mechanisms, and regulatory measures. Following the excerpt, we comment on the authors' observations.⁷²

Price-based mechanisms. Under price-based mechanisms, the authors lump together a wide variety of economic incentives. Although one such tool is the payment of money to landowners who use their lands consistently with biodiversity objectives, the authors see dangers in such payments other than to deal with transitional times when new land use norms are taking effect. Aside from the sheer cost, payments undercut efforts to establish good land use as a requirement of citizenship, as well as efforts to convince the public that land degradation is a public harm. They also undercut voluntary conservation efforts by rewarding those who fail to do their part. The authors advocate instead that jurisdictions embrace the polluter-pays and user-pays principle, so that those who adversely affect biodiversity bear the costs of their behavior while those who peculiarly benefit from conservation (those who visit game preserves, for example) pay for the special benefits. One way to implement this idea is for those who harm valuable habitat to pay "biodiversity impact fees," tailored along the lines of other impact fees that local jurisdictions have charged for development that adversely affects urban infrastructures.

Property-rights approaches and conservation easements. The various tools that the authors gather together under the "property rights" label also vary widely. The category would include, for example, steps to redefine habitat degradation as a land use harm, akin to a private or public nuisance. Such a move would deny landowners the right to engage in degrading land uses—they would impose on owners the "ecological constraints" that the authors view as important.

Also included in the property rights category are arrangements whereby landowners restrict their land use options by granting conservation easements to private or public conservation entities. At common law, only a few types of "negative easements"—easements that restricted how the owner could use property—were legally permitted. The list has been expanded by statutes that expressly authorize conservation easements. Because easements can be drafted in a wide variety of ways, they are highly flexible tools in protecting wildlife while still allowing owners of burdened or servient estates to use their lands in ways not harmful to wildlife. In some settings, easements impose affirmative [33 ELR 10142] duties on landowners to manage lands to sustain desirable landscape features or processes.

Useful as conservation easements are, the tool is not without its limitations and challenges. Owners of burdened estates may over time chafe at the restrictions imposed, particularly when the land passes into the hands of owners less supportive of conservation. Although easements are nominally permanent (unless otherwise created), some courts have shown a willingness to refuse to enforce limitations under significantly changed circumstances. Like other land use restrictions, easements require monitoring and enforcement, which can pose additional problems, for public as well as private conservation entities. These problems and others are considered in Federico Cheever, Public Good and Private Magic in the Law of Land Trusts and Conservation Easements: A Happy Present and a Troubled Future.⁷³

The authors of the excerpt worry about the side effects of cash incentive payments to landowners unless such payments are clearly transitional. But are there not similar reasons to worry about easement-acquisition programs? Do they not also signal to landowners that conservation is optional and that they deserve payment when they undertake it? Consider: is it fair for one landowner to receive compensation for a conservation easement when a neighbor is conserving ecologically similar land without compensation? What if one landowner sells a conservation easement, and then a government unit similarly restricts adjacent land by means of uncompensated regulation? Should payment for easements be limited to settings in which landowners clearly go beyond the conservation norm established for similarly situated landowners?

Regulatory approaches. As Gunningham and Young assess matters, regulatory measures are useful, not just in containing bad land uses, but in establishing norms for acceptable and unacceptable landowner conduct. Properly designed regulatory measures, they argue, can build upon and accentuate educational measures. Regulation can also level the playing field so that those who conserve do not feel that their efforts are being undercut by those who do not.

But note the limits on regulatory measures that the authors identify—limits that observers have commented upon since the days of Leopold. Regulation works best when compliance is easily monitored. When compliance is hard to determine, violations are far more likely. Moreover, it is most effective when it compels landowners to refrain from engaging in undesirable actions; regulations are less able to motivate landowners to manage their lands affirmatively in ways beneficial to wildlife—such as mimicking disturbance regimes and affirmatively promoting habitat restoration and maintenance. They are ill-suited, also, to address the challenges posed by exotics.

Although the authors distinguish between property-based and regulatory-based approaches, how different are they? Both entail imposing by law "ecological constraints" on how owners can use their lands. At one time, courts kept property law up to date by altering the common law of property ownership. More recently, courts have deferred more to other lawmaking bodies to fulfill this function. Today, statutes and regulations are just as important as the common law in defining what it means to own.

* * * *

Conclusion

In the final section of the final chapter we deal suggestively with the daunting task of protecting biological diversity in places where people live and gain their sustenance. We end our assessment (and the book) with the following words:

In the end, no single tool, legal or otherwise, is likely to succeed in protecting the public's interest in the continent's biological riches. Leopold, it appears, had it right in his famous essay: a sound wildlife plan will likely comprise "a constantly shifting array of small moves, infinitely repeated, to give wildlife due representation in the shaping of the future minds and future landscapes of America."⁷⁴

1. DALE D. GOBLE & ERIC T. FREYFOGLE, WILDLIFE LAW: CASES AND MATERIALS (Foundation Press 2002) (excerpts reprinted with permission).

2. "Royal" animals included swans, whales, and sturgeons. See Case of Swans, 7 Co. Rep. 15b, 77 Eng. Rep. 435 (K.B. 1592). The distinction is not of solely historical interest. See State v. Lessard, 29 P.2d 509 (Or. 1934) (state claimed ownership of an orca as a "royal fish").

3. E.g., Sutton v. Moody, 1 Ld. Raym. 250, 91 Eng. Rep. 1063 (K.B. 1698).

4. Forests were the most striking example of this since they were a land use classification rather than a description of vegetation: a forest might include villages and cultivated fields as well as tracts of trees—and most of the land was not "owned" by the King. Within a forest, land uses were severely restricted to protect habitat for certain game species. But forests were not the only lands subject to use restrictions to protect wildlife habitat. E.g., An Act for the More Easy Discovery and Conviction of Such as Shall Destroy the Game of This Kingdom, 3 & 4 Wm. & M., ch. 23, § 11 (1692) (prohibiting the burning of heath to preserve the habitat of grouse).

5. E.g., Rex v. Chipp, 2 Str. 711, 93 Eng. Rep. 800 (K.B. 1726) (landownership confers no right to hunt).

6. See JOHN MANWOOD, A TREATISE AND DISCOURSE OF THE LAWS OF THE FOREST (Thomas Wright & Bonham Wright, London 1598).

7. See 2 WILLIAM BLACKSTONE, COMMENTARIES *38-39.

8. Geush v. Mynns, Cro. Jac. 321, 79 Eng. Rep. 274 (K.B. 1614).

9. Keeble v. Hickeringill, 11 East. 574, 103 Eng. Rep. 1127 (Q.B. 1707).

10. See Pierson v. Post, 3 Cai. R. 175 (N.Y. 1805) (Livingston, J., dissenting).

11. PAUL SHEPARD, THE OTHERS: HOW ANIMALS MADE US HUMAN 4 (1996).

12. 3 Cai. R. 175 (N.Y. 1805).

13. 2 HUGO GROTIUS, DE JURE BELLI AC PACIS [ON THE LAW OF WAR AND PEACE] ch. 8, §§ 2-3 (Amsterdam, 1646).

14. I EMERICH DE VATTEL, DROIT DES GENS [THE LAW OF NATIONS] § 234 (Joseph Chitty ed., Philadelphia, 1876) (1758).

15. 4 SAMUEL, BARON VON PUFENDORF, DE JURE NATURAE ET GENTIUM [ON THE LAW OF NATURE AND OF NATIONS] ch. 6, §§ 1-2, 4-6, 9-10 (Basil Kennett trans., 4th ed. London, 1779) (1672).

16. 7 Co. Rep. 15b, 77 Eng. Rep. 435 (K.B. 1592).

17. Id.

18. 80 Eng. Rep. 540 (K.B. 1611).

19. Id.

20. 144 P. 938 (Wash. 1914).

21. Id.

22. 80 Eng. Rep. at 540.

23. 6 N.J.L. 1 (1821).

24. 41 U.S. (16 Pet.) 367 (1842).

25. See, e.g., National Audubon Soc'y v. Superior Court of Alpine County, 658 P.2d 709, 13 ELR 20272 (Cal. 1983).

26. Kean v. Rice, 12 Serg. & Rawle 203 (Pa. 1824) (Tilghman, C.J.).

27. 69 Mass. (3 Gray) 268 (1855).

28. Id. (emphasis added).

29. E.g., 2 BLACKSTONE, supra note 7, at *391-92.

30. E.g., 1 VATTEL, supra note 14, § 234.

31. 59 N.W. 1098 (Minn. 1894).

32. Id.

33. See, e.g., Lochner v. New York, 198 U.S. 45 (1905); Munn v. Illinois, 94 U.S. 113 (1877).

34. 841 P.2d 467 (Mont. 1992).

35. 161 U.S. 519 (1896).

36. 436 U.S. 371 (1978).

37. 441 U.S. 322 (1979).

38. 67 Mont. 558, 216 P. 776 (1923).

39. 117 Mont. 105, 158 P.2d 501 (1945).

40. 150 Mont. 525, 437 P.2d 373 (1968).

41. 27 Wash. App. 815, 621 P.2d 764 (1980).

42. 625 P.2d 994 (Colo. 1981).

43. 491 So. 2d 987 (Ala. App. 1985).

44. 504 N.E.2d 336 (Ind. App. 1987).

45. 597 S.W.2d 3 (Tex. App. 1980).

46. 159 Mich. App. 537, 407 N.W.2d 36 (1987).

47. 658 P.2d 709, 13 ELR 20272 (Cal. 1983).

48. United States v. W.R. Cress, 243 U.S. 316, 320 (1917).

49. Kaiser Aetna v. United States, 444 U.S. 164, 177, 10 ELR 20042, 20046 (1979).

50. United States v. Rands, 389 U.S. 121, 122-23 (1967).

51. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1028, 22 ELR 21104, 21111 (1992). See Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 479, 18 ELR 20483, 20485 (1988) (lands beneath navigable waterways are "subject to the federal navigation easement and the power of Congress to control navigation on those streams under the Commerce Clause").

52. Dardar v. LaFourche Realty Co., 985 F.2d 824, 832, 23 ELR 20762, 20765 (5th Cir. 1993) (citing Kaiser Aetna, 444 U.S. at 178, 10 ELR at 20046).

53. 77 U.S. (10 Wall.) 557 (1871).

54. 87 U.S. (20 Wall.) 430 (1874).

55. Id. at 441-42 (finding the Fox River in Wisconsin navigable to its source even though travel required dragging shallow, flat-bottomed boats over rocks and portaging waterfalls).

56. United States v. Twin City Power Co., 350 U.S. 222, 227 (1951).

57. Dardar, 985 F.2d at 824, 23 ELR at 20762; Boone v. United States, 944 F.2d 1489, 22 ELR 20113 (9th Cir. 1991) (by implication); United States v. Harrell, 926 F.2d 1026 (11th Cir. 1991) (by implication); Loving v. Alexander, 745 F.2d 861 (4th Cir. 1983).

58. 444 U.S. 206, 10 ELR 20050 (1979).

59. Id. at 208, 10 ELR at 20050.

60. See also Atlanta Sch. of Kayaking, Inc. v. Douglasville-Douglas County Water & Sewer Auth., 981 F. Supp. 1469 (N.D. Ga. 1997) (servitude provides a federal law right of access, despite state law, to white water river with rapids, rocks, and shifting currents, that is usable by kayaks after rains). Cf. State v. Head, 498 S.E.2d 389 (S.C. 1997) (artificial lakes created on private land adjacent to navigable waters are open to public under state law); Mentor Harbor Yachting Club v. Mentor Lagoons, Inc., 163 N.E.2d 373 (Ohio 1959) (artificial extensions of naturally navigable channels become a part thereof and are public waters under state law).

61. 116 N.E. 99 (N.Y. 1917).

62. 11 East. 574, 103 Eng. Rep. 1127 (K.B. 1707).

63. 370 P.2d 371 (Wyo. 1962).

64. 201 N.W.2d 761, 3 ELR 20167 (Wis. 1972).

65. Id. at 763, 3 ELR at 20168.

66. VT. STAT. ANN. tit. 10, §§ 6001-6108 (1997); CAL. PUB. RES. CODE §§ 4511-4517 (1984).

67. E.g., CHARLES C. MANN & MARK L. PLUMMER, NOAH'S CHOICE: THE FUTURE OF ENDANGERED SPECIES (1995).

68. 437 U.S. 153, 8 ELR 20513 (1978).

69. 168 SCIENCE 1243 (1968).

70. William E. Odum, Environmental Degradation and the Tyranny of Small Decisions, 32 BIOSCIENCE 728 (1982) (citing Alfred E. Kahn, The Tyranny of Small Decisions: Market Failures, Imperfections, and the Limits of Economics, 19 KYKLOS 23 (1966)).

71. Id.

72. Neil Gunningham & Michael D. Young. Toward Optimal Environmental Policy: The Case of Biodiversity Conservation, 24 ECOLOGY L.Q. 243 (1997)

73. 73 DENV. U. L. REV. 1077 (1996).

74. Aldo Leopold, Planning of Wildlife, in FOR THE HEALTH OF THE LAND 193 (J. Baird Callicott & Eric T. Freyfogle eds., 1999).