Category Archives: Hunting & fishing

Stream access laws in New York and Montana

The public’s right to access streams and other flowing waters is different in every state, depending on each jurisdiction’s particular combination of constitutional, statutory, and judicial public trust rules. These laws impact not only public use, but also the private property rights of riparian owners, and they can have far-reaching effects on conservation measures and economic development related to recreational tourism. To illustrate the breadth of these rules, consider the very different stream access laws in New York and Montana. Continue reading

Seventh Circuit approves warrantless taxidermy searches

The Seventh Circuit held last week that the Fourth Amendment permits warrantless searches of taxidermy businesses. The case, United Taxidermists Association v. Illinois Department of Natural Resources, was commenced in 2005 after a taxidermist who was frustrated with the state’s periodic warrantless inspections formed the United Taxidermists Association and persuaded 30 other Illinois taxidermists to join his cause (although more than 600 declined his invitation).

The taxidermists challenged the Illinois Wildlife Code in particular, which requires them to be licensed and to keep detailed written records regarding all animals and animal parts that they receive. These records must also correspond to tags attached to each animal in their possession, and all “taxidermy records” must be open to inspection at all times by officials from the Department of Natural Resources.

The Seventh Circuit agreed with the state that these provisions are constitutional under the Supreme Court’s holding in New York v. Burger, which allows reasonable warrantless inspections of closely regulated commercial businesses. A search is considered reasonable under Burger if it meets three requirements:

  1. there must be a substantial government interest in the regulatory scheme;
  2. the warrantless inspection must be necessary to further that scheme; and
  3. limitations on the inspection must ensure a constitutionally adequate substitute for a warrant.

The taxidermists conceded that the warrantless inspection of written taxidermy records was supported by the state’s substantial interest in protecting wildlife, but they argued that there was no corresponding interest supporting the search of taxidermy tags. As the court explained, however, Burger’s first prong requires a substantial government interest in the regulatory scheme as a whole. Accordingly, there was no basis for requiring separate justifications for searching written records as opposed to taxidermy tags, and the state’s interest in protecting wildlife was sufficient to satisfy the first Burger requirement.

The taxidermists’ next argument was that warrantless searches failed the third prong of the Burger test because the statute didn’t define exactly which “taxidermy records” were subject to inspection and, as a result, failed to give sufficient notice of the property to be searched. But the court found this interpretation to be overly narrow and explained that if the Illinois legislature had intended the term “taxidermy records” to mean only written records, it would have explicitly said so in the statute. The court also pointed out that the taxidermists’ interpretation was inconsistent with the statute’s organization and that “removing the tagging requirement from the breadth of inspections also would frustrate the purpose of the Code: regulating the capture and possession of wildlife.”

Finally, the court rejected the taxidermists’ claim that the statute gave inspectors too much discretion because it allowed “any peace officer” to conduct searches. Although broad, the court found this provision to be reasonable and noted that equally broad inspection regulations have been upheld in other jurisdictions.

Who owns wild animals?

If you’ve gone to law school, you’ve undoubtedly read the famous decision in Pierson v. Post, and you know that the question of who owns wild animals comes down to who catches them. If you haven’t gone to law school, or if your memory needs refreshing, the gist of what happened in the case is that a certain Mr. Lodowick Post was running his hounds in hot pursuit of a fox, when all of a sudden Jesse Pierson swooped in, killed the fox, and told Post to go shove it. This being 1805 and all, the New York Supreme Court of Judicature discussed a bunch of books written by old white men with names like Puffendorf, Bynkershoek and Barbeyrac, and after comparing their theories of property rights, the court decided that whoever captures the fox gets to keep it. So Mr. Pierson got to keep the fox, despite his poor sportsmanship, and Mr. Post was again told to go shove it.

The beauty of this rule is that it’s easy to apply: whoever captures or kills the fox gets to keep it.* The problem with the rule of capture was that it incited frontier hunters and trappers to kill as many wild things as they could. Free taking policies, moreover, which were established as an alternative to British land monopolies, gave American hunters the right to roam freely even on private lands. Coupled with poor enforcement of the limited game laws that existed, the whole system just encouraged poaching, and exploitation went on as if wild animals were an inexhaustible resource. But before too long, wealthy sportsmen started to notice problems: all manner of wild things were starting to disappear, and some—like the heath-hen and passenger pigeons—were wiped out altogether.

To stop the extinction of species and preserve game hunting for the wealthy elite, sportsmen’s associations were formed and lobbied for regulations that would exclude poor and subsistence hunters. Seasons were further restricted, efficient hunting techniques were banned, and license fees were established that were too high for the poor to afford. At the same time, fish and game agencies (funded by the license fees that only the wealth could pay) were created to enforce regulations that local officials would not. And while the British elite had secured wildlife resources for themselves by giving property owners control over the wildlife found on their land (rather than letting pesky Piersons sneak in and take it), American sportsmen didn’t contest the rule of capture. Instead, they justified restrictive hunting regulations on the basis of a state “ownership” interest in wildlife, saying that wildlife was a common resource that had to be preserved against the poor and hungry masses.

The U.S. Supreme Court ruled on the issue in Geer v. Connecticut, a case that upheld a state law making it illegal to export game birds. Quoting a Minnesota court decision, the Court explained that “the ownership of wild animals, so far as they are capable of ownership, is in the State, not as a proprietor but in its sovereign capacity as the representative and for the benefit of all its people in common.” This is really a variation of the public trust doctrine, which says that common resources like navigable waters cannot be “owned” by individuals, but are instead held in trust by the state for the benefit of all its residents. So even though the state ownership rule was created as a way for wealthy sportsmen to take control of wildlife resources, their motivations were rooted in the conservation movement.

Nearly a century later, in 1979, the Supreme Court overturned Geer in a case called Hughes v. Oklahoma. The case was about another ban on wildlife exports, and this time, the Court ruled that it was unconstitutional under the Commerce Clause, which prohibits interstate discrimination in commerce. In reaching this result, the Court explained that the “state ownership” language was nothing more than an antiquated legal fiction. But the Court was careful to emphasize that the states still had the power to protect, conserve and manage wild animals, so long as their regulations didn’t violate the Commerce Clause or other constitutional provisions.

Even though the Supreme Court made it pretty clear that states don’t own wild animals, a lot of states pretty much ignored this and continued to rely on the “fiction” of common ownership. Consider the Oregon wildlife statute, which says that “Wildlife is the property of the state.” A group of game ranchers in Oregon recently wanted to know exactly what that meant—whether, in particular, it meant that they didn’t actually “own” the elk, ibex, water buffalo and other animals raised on their property and either born in captivity or purchased from license holders. The Oregon Court of Appeals decided the case in April, and the judges held that, yes, the state “owns” wild animals, but only in a sovereign sense, and not in a proprietary sense. In other words, the state owns wildlife insofar as it can regulate hunting and conservation, but doesn’t own it in the way that you or I can own a fox after we’ve captured it. It’s the same legal fiction, still on the books.

So who owns wild animals? The best answer is probably either nobody or everybody, at least until the wild animal is captured, and then the first person to get the fox still wins as long as he complies with all the hunting regulations. Maybe the Texas parks and wildlife law says it better by emphasizing that wild animals aren’t owned by the state itself, but “are the property of the people of this state.”

* If you’re a law professor, disregard this statement. Obviously the rule of capture is very, very complicated because the meaning of “capture” isn’t really clear and there are just so many ways that you can maybe-capture a fox.

Additional references:

Thomas A. Lund, Early American Wildlife Law, 51 N.Y.U. L. Rev. 703 (1976).

Thomas Lund, Nineteenth Century Wildlife Law: A Case Study of Elite Influence, 33 Ariz. St. L.J. 935 (2001).

Michael C. Blumm and Lucus Ritchie, The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, 35 Envtl. L. 673 (2005).