This article examines the legal foundations for state and federal wildlife regulation in the United States. The first part explores the constitutional bases for federal authority over wildlife and the development of the doctrine of state ownership of wildlife, a judicially created doctrine which has furnished the basis for repeated challenges to the exercise of federal authority. The second part of the article examines certain important limitations on the scope of state and federal regulatory authority. These include constitutional proscriptions against discrimination and the very special limitation deriving from Indian treaties.

I. The Legal Framework for the Development of Wildlife Law

A. The Development of the State Ownership Doctrine

The essential core of English wildlife law on the eve of the American Revolution was the complete authority of the king and the Parliament to determine what rights others might have with respect to the taking of wildlife. The first case to come before the United States Supreme Court concerning the relationships of government and citizen with respect to wildlife was that of Martin v. Waddell in 1842.¹ The facts of that case were ideally suited for an examination of the extent to which British wildlife law carried over to the newly independent United States.

At issue in Martin v. Waddell was the right of a riparian landowner to exclude all others from taking oysters from certain mudflats in New Jersey's Raritan River. The landowner claimed to own both the riparian and submerged lands of the river, tracing his title to a grant in 1664 from King Charles II to the Duke of York which purported to convey "all the lands, islands, soils, rivers, harbors, mines, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings, huntings and fowlings" within certain described metes and bounds.

In the view of the inventive Chief Justice, Roger Taney, the legal question presented was more than the interpretation of a mere deed of title, for the original deed from the King to the Duke "was an instrument upon which was to be founded the institutions of a great political community."² Accordingly, Taney deemed it necessary to consider first "the character of the right claimed by the British Crown,"³ and second whether that character changed when title to the lands passed from the King to the Duke and ultimately to the plaintiff. Addressing those fundamental issues, Taney declared that "dominion and property in navigable waters, and in the lands under them [were] held by the King as a public trust," and that it "must be regarded as settled in England, against the right of the king, since Magna Charta," to make a private grant of such lands and waters.⁴ That is, by virtue of his public trust responsibilities, the king was without power to abridge "the public common of piscary."⁵

If the public trust character of navigable waters and their submerged lands survived a grant by the king of his proprietary interest in them, there was still the question whether it also survived the American Revolution. Taney declared that it did in the following terms:

[W]hen the people of New Jersey took possession of the reins of government, and took into their own hands the powers of sovereignty, the prerogatives and regalities which before belonged either to the crown or the parliament, became immediately and rightfully vested in the state.⁶

In so declaring, Taney seemed to place the states in the role of successors to the parliament and the crown, thus laying the groundwork for the subsequent development of the doctrine of state ownership of wildlife. As will become apparent, however, that development largely ignored Taney's important qualifier that the powers assumed by the states were "subject … to the rights since surrendered by the Constitution to the general government."⁷

[7 ELR 50014]

Until the turn of the century, there were few occasions to consider the scope of the rights surrendered by the states, because prior to 1900 the only federal wildlife legislation was limited in scope and relatively insignificant in impact.⁸ There was, however, a steady growth in the regulation of wildlife at the state and territorial level. The few Supreme Court cases which considered the validity of that legislation uniformly upheld it.

In Smith v. Maryland, for example, the Supreme Court considered the validity of a Maryland law which prohibited the taking of oysters from the state's waters by means of scoop or drag.⁹ The defendant shipowner, whose vessel was licensed by the United States to engage in the coasting trade, contended that the state law interfered with the exclusive federal power to regulate interstate commerce.¹⁰ The Supreme Court rejected the defendant's argument and held that the state's ownership of the soil conferred upon it the authority to regulate the taking of oysters from the soil.¹¹ The court was at pains to emphasize the very limited scope of its holding, however, as the following passage indicates:

The law now in question … does not touch the subject of the common liberty of taking oysters, save for the purpose of guarding it from injury, to whomsoever it may belong and by whomsoever it may be enjoyed. Whether this liberty belongs exclusively to the citizens of the State of Maryland, or may lawfully be enjoyed in common by all citizens of the United States; whether this public use may be restricted by the States to its own citizens, or a part of them, or by force of the Constitution must remain common to all citizens of the United States; whether the national government, by a treaty or act of congress, can grant to foreigners the right to participate therein; or what, in general, are the limits of the trust upon which the State holds this soil, or its power to define and control that trust, are matters wholly without the scope of this case, and upon which we give no opinion.¹²

Some of the many questions left unanswered by the court's Smith opinion were answered relatively soon thereafter. Others have still not been answered definitively though the court may soon have occasion to do so.¹³

McCready v. Virginia gave the court its first opportunity to answer one of the questions left open in Smith.¹⁴ There, the court upheld a Virginia statute prohibiting citizens of other states from planting oysters in Virginia's tidewaters. In so doing, however, it substantially expanded the narrow holdings of Martin v. Waddell and Smith v. Maryland by declaring that the state owned not only the tidewaters, but also "the fish in them, so far as they are capable of ownership while running."¹⁵ Accordingly, Virginia could regulate the planting or taking of oysters in those tidewaters, even to the point of excluding altogether the citizens of other states, because such a regulation "is in effect nothing more than a regulation of the use by the people of their common property."¹⁶

Fifteen years later, in Manchester v. Massachusetts, the Court upheld a Massachusetts statute prohibiting the use of purse seines for the taking of menhaden in Buzzards Bay.¹⁷ The Court's opinion signalled a more cautious approach to the question of ultimate authority for the state's regulation. Rather than fasten that authority on any concept of "ownership" of the fish, the Court emphasized that inasmuch as the bay was a body of navigable water within the state's territorial jurisdiction, "the subject is one which the State may well be permitted to regulate within its territory, in the absence of any regulation by the United States."¹⁸ Moreover, the Court felt compelled to point out that the regulation in question served a valid public purpose, the preservation of menhaden, which "although they are not used as food for human beings, but as food for other fish which are so used, is for the common benefit."¹⁹ The quoted language is significant because it reflects a fundamental nineteenth century conception of the purpose of wildlife law, the preservation of a food supply.

In still other respects the Manchester decision reflected some uncertainty about the breadth of the principles previously announced in McCready. Thus, the Court observed that since the Massachusetts statute did not discriminate in favor of the citizens of that state, there was no need to consider whether there existed "a liberty of fishing for swimming fish in the navigable waters of the United States common to the inhabitants or citizens of the United States."²⁰ The Court's implication that a state's powers with respect to "swimming fish" may be less than those with respect to sedentary shellfish was later to become the basis for virtually eliminating the vitality of the McCready decision.²¹

It was against this background of developing principles regarding state ownership of submerged land and state control over fisheries that the Supreme Court in 1896 decided the case which eloquently articulated a general theory of state "ownership" of wildlife, Geer v. Connecticut.²² In that case, the defendant Geer appealed his conviction under state law for possessing game birds with the intent to ship them out of Connecticut. The birds had been lawfully killed there; only Geer's intent [7 ELR 50015] to transport them outside the state was unlawful. The legal question thus presented was the same as that considered in Smith, namely, whether the statute improperly interfered with the power of Congress to regulate interstate commerce.

In the view of Justice Edward White, writing for the majority, the answer required a thorough examination "of the nature of the property in game and the authority which the State had a right lawfully to exercise in relation thereto."²³ Tracing the history of governmental control over the taking of wildlife from Greek and Roman law through the civil law of the European continent and the common law of England, White concluded that the states had the "right to control and regulate the common property in game," which right was to be exercised "as a trust for the benefit of the people."²⁴ As an incident of this right of control, the states could affix conditions on the taking of game, and, most importantly, those conditions would remain with the game even after being killed.

Addressing the narrow legal question of whether the conditions affixed by Connecticut improperly impeded interstate commerce, White offered three alternative grounds on which to uphold the state law. First, without deciding the question, he asserted that in view of the "peculiar nature" of the state's ownership of game, "it may well be doubted whether commerce is created" by the killing and subsequent sale of such game.²⁵ Second, even if it did constitute commerce, it was at most only intrastate commerce.²⁶ Finally, even if interstate commerce were impeded, the "duty of the State to preserve for its people a valuable food supply" authorized the exercise of the state's police power to that end so long as interstate commerce was only "remotely and indirectly affected."²⁷

The Geer opinion, because of the broad generality of its language, soon came to be regarded, and is still regarded, as the bulwark of the state ownership doctrine. Yet it is clear that the precise legal issue decided in Geer was quite narrow. Morever, Geer itself recognized that the power which it found in the states could continue to exist only "insofar as its exercise may not be incompatible with, or restrained by, the rights conveyed to the Federal government by the Constitution."²⁸ Nevertheless, by intermixing questions of state authority to regulate the taking and disposition of wildlife with such technical property concepts as "ownership," Geer sparked a long and continuing debate about the respective powers of the state and federal governments over wildlife. Taken to its extreme, as some of its proponents would try to take it, the state ownership doctrine would render impossible the development of a body of federal wildlife law. Yet, only four years after Geer, federal wildlife law took its first major step with passage of the Lacey Act of 1900.²⁹

B.The Development of Federal Wildlife Law in the Face of the State Ownership Doctrine

The Lacey Act was a very cautious first step in the field of federal wildlife regulation. Relying upon the grant of power by the Constitution to the Congress to regulate commerce between the states,³⁰ the Act, in its central provision, prohibited the interstate transportation of "any wild animals or birds" killed in violation of state law.³¹ Thus, the principal thrust of the Act was to enlist the aid of the federal government, through its powers over interstater commerce, in the enforcement of state game laws.

But the Lacey Act went even further in bolstering the states' regulatory authority over wildlife, for it included a provision, taken almost verbatim from legislation designed to permit "dry" states to block the importation of alcohol, which stated that whenever any dead wildlife were imported into a state, they were subject to its laws as if they were killed there.³² Thus, whereas Geer had upheld the authority of a state to prohibit the export of game lawfully killed within the state, the Lacey Act sanctioned a state's prohibition of the import of game lawfully killed in other states. Accordingly, in the view of some early courts, the Act was tantamount to an abdication of federal powers affirmatively to regulate interstate commerce.³³

Other provisions of the Lacey Act had implications for the scope of federal power, though their importance was not much noted at the time. One such provision prohibited the importation of certain named animals, including starlings and English sparrows, and "such other birds or animals as the Secretary of Agriculture may … declare injurious to the interest of agriculture or horticulture."³⁴ The source of this exercise of federal authority, the congressional power over foreign commerce; has never been seriously challenged.³⁵

Finally, in direct response to the decimation of the passenger pigeon and the depletion of a number of other birds, the Lacey Act authorized the Secretary of Agriculture to adopt all measures necessary for the "preservation, distribution, introduction, and restoration of game birds and other wild birds," subject, however, to the laws of the various states and territories.³⁶ [7 ELR 50016] In this manner, the federal government began to inch slowly toward affirmative wildlife management.

The cautious approach embodied in the Lacey Act appeared to be eminently justified when, 12 years later, the Supreme Court decided The Abby Dodge.³⁷ In that action, the United States brought suit against a vessel for its alleged violation of a federal statute prohibiting the taking of sponges from the Gulf of Mexico or the Straits of Florida by means of diving apparatus.³⁸ The vessel owner contended that the sponges were taken in Florida's territorial waters and that if the federal statute applied to such waters, it was unconstitutional because the taking of sponges there was a matter "exclusively within the authority of the states." Chief Justice White, the author of the Geer opinion 16 years earlier, agreed. Although he upheld the validity of the federal statute, he did so by construing it to apply only beyond Florida's territorial waters. In explanation, he offered the following rationale:

In view of the clear distinction between state and national power on the subject, long settled at the time the act was passed … we are of opinion that its provisions must be construed as alone applicable to the subject within the authority of Congress to regulate, and, therefore, be held not to embrace that which was not within such power.³⁹

Thus, Justice White's Abby Dodge decision was the first (and last) statement of the Supreme Court that the state ownershipdoctrine actually precluded federal wildlife regulation.

1. The Federal Treaty-Making Power

With the Abby Dodge decision only a year old, the outlook was hardly auspicious when Congress enacted the Migratory Bird Act of 1913.⁴⁰ Actually a part of the Appropriations Act for the Department of Agriculture, it declared all migratory game and insectivorous birds "to be within the custody and protection of the government of the United States," and prohibited their hunting except pursuant to federal regulations. The constitutionality of the 1913 Act was considered in two cases in the federal district courts, United States v. Shauver,⁴¹ and United States v. McCullagh,⁴² and in each case it was found wanting. It appears that the government made a rather feeble effort to support its law on the basis that the migratory character of the birds made them subject to its power to regulate interstate commerce. Both courts rejected the government's argument as foreclosed by Geer. The government made a somewhat more vigorous claim that the law was supported by the Property Clause of the Constitution, which authorized the Congress to make all "needful Rules and Regulations" concerning the property of the United States.⁴³ That argument was likewise rejected on the basis that Geer had placed "property" in game in the states.

The Shauver case was appealed to the Supreme Court and argued twice, initially before a bench of only six justices. Apparently fearful of an adverse decision, the Department of Agriculture urged the Department of State to conclude a treaty with Great Britain (on behalf of Canada) for the protection of migratory birds.⁴⁴ The treaty was signed on August 16, 1916.⁴⁵ After passage in 1918 of implementing legislation, the Migratory Bird Treaty Act,⁴⁶ the Supreme Court dismissed the government's appeal in Shauver, and thus never decided the constitutionality of the 1913 Act.

The constitutionality of the 1918 Act was very soon before the Supreme Court when the State of Missouri filed a bill in equity seeking to restrain one Ray Holland, a United States Game Warden, from enforcing the Act within the state. The United States contended that the Treaty and its implementing legislation took precedence over any conflicting state power of regulation by virtue of the Constitution's Supremacy Clause.⁴⁷ The Court's landmark decision in Missouri v. Holland dealt a stunning blow to those who had felt the state ownership doctrine was a bar to federal wildlife regulation.⁴⁸ Justice Oliver Wendell Holmes, writing for a seven member majority which included Justice Louis Brandeis and even Chief Justice White, disposed of Missouri's ownership argument in the following terms:

The State … founds its claim of exclusive authority upon an assertion of title…. No doubt it is true that as between a State and its inhabitants the State may regulate the killing and sale of such birds, but it does not follow that its authority is exclusive of paramount powers. To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone, and possession is the beginning of ownership….

… But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the states. The reliance is vain….⁴⁹

Missouri v. Holland established beyond question the supremacy of the federal treaty-making power as a [7 ELR 50017] source of authority for federal wildlife regulation.⁵⁰ More importantly, if forcefully rejected the contention that the doctrine of state ownership of wildlife functioned to bar federal wildlife regulation, and invited the question of what further sources of federal power might be utilized in the development of a body of federal wildlife law.

2. The Federal Property Power

Only eight years after Missouri v. Holland, the scope of the Property Clause, rejected by lower federal courts as a source of authority for federal wildlife regulation in Shauver and McCullagh, was to be considered by the Supreme Court. In fact, the federal government had been exercising this power for a considerable time, for it had in 1894 prohibited all hunting in Yellowstone National Park.⁵¹ In addition, in 1906 it prohibited the hunting of birds "on all lands of the United States which have been set apart or reserved as breeding grounds for birds by any law, proclamation, or Executive Order," except under regulations of the Secretary of Agriculture, thus asserting regulatory authority over the taking of wildlife on the then newly created federal wildlife refuges.⁵² There are no reported cases challenging these assertions of authority, probably because the federal government was assumed to have the same right as any other landowner to prohibit hunting on its land. When the government sought to remove wildlife from such lands without complying with state law, however, several states challenged that action as being outside the scope of the powers conferred by the Property Clause.

The first of several cases to consider the issue was the 1928 decision of the Supreme Court in Hunt v. United States.⁵³ In that case the Secretary of Agriculture directed the removal of excess deer in Kaibab National Forest because of their threatened harm to the forest through overbrowsing. State officials arrested certain persons carrying out the Secretary's directive, whereupon the United States brought suit to enjoin the state from enforcing its game laws with respect to the removal program. The state relied upon Geer and the other ownership cases. Without even mentioning those cases, however, the Supreme Court ruled that "the power of the United States to thus protect its lands and property does not admit of doubt, … the game laws or any other statute of the state notwithstanding."⁵⁴ Twelve years later, the Hunt holding was extended to acquired national forest lands in Chalk v. United States.⁵⁵

Despite the decisions of Hunt and Chalk, disagreement concerning the authority of the federal government to regulate wildlife on its own lands remained. On December 1, 1964, the Office of the Solicitor for the Department of the Interior issued a memorandum opinion in response to a request from the Fish and Wildlife Service for a determination of the Secretary's authority to promulgate hunting and fishing regulations for lands within the National Wildlife Refuge System. The Solicitor's opinion went beyond the narrow question put to him, and declared that the United States "has constitutional power to enact laws and regulations controlling and protecting … [its] lands, including the … resident species of wildlife situated on such lands, and that this authority is superior to that of a State."⁵⁶

The Solicitor's opinion touched off a storm of controversy. Even the comprehensive study of fish and wildlife resources on the public lands undertaken for the Public Land Law Review Commission concluded that the Solicitor had been overzealous and that at the very least the cases required a "clear showing of damage to Federal property before action in violation of State Law is sanctioned."⁵⁷

The asserted distinction relied upon in the Commission's study was promptly rejected in New Mexico State Game Commission v. Udall, in which the Secretary of Interior directed the killing of a number of deer in Carlsbad Caverns National Park solely for research purposes, without compliance with state game laws and without any showing of existing depredation by the deer.⁵⁸ The concerns of many of the state game agencies, expressed through the amicus brief of the International Association of Game, Fish, and Conservation Commissioners, were as follows:

[T]his occurrence is but one in a series of recent endeavors by the Department of Interior to enter the field of game management, a role which has been historically and competently fulfilled by the States…. Interior Department administrators increasingly claim that, on federally owned lands, the federal government has the right to manage and control wildlife, including the right to take and dispose of such game as the Department deems appropriate, and the State may not interfere.⁵⁹

Similarly, the State of Michigan, in its amicus brief, argued that the federal government's "next logical step will be to use this new power for the purpose of regulating hunting and fishing on these lands and charging a license for such privilege."⁶⁰ Notwithstanding these [7 ELR 50018] fears of the states, the court upheld the Secretary's research program because of his necessary power to determine which animals "may be detrimental to the use of the park."⁶¹

Although the Udall decision obviated the need for a "clear showing of damage" to federal land before wildlife removal would be permitted, there nevertheless appeared to remain some sort of required nexus between protecting the land and regulating the wildlife. Indeed, it was on such a basis that a three-judge federal court in 1975 struck down the Wild Free-Roaming Horses and Burros Act, thus setting the stage for the Supreme Court's most recent, and probably definitive pronouncement on the federal authority to regulate wildlife conferred by the Property Clause, Kleppe v. New Mexico.⁶²

The Wild Free-Roaming Horses and Burros Act⁶³ was enacted in 1971 to protect all unbranded and unclaimed horses and burros on the public lands of the United States as "living symbols of the historic and pioneer spirit of the West."⁶⁴ The Act declared such animals to be "an integral part of the natural system of the public lands" and directed the Secretaries of Interior and Agriculture "to protect and manage [them] as components of the public lands."⁶⁵ The Kleppe case began when, at the request of a federal grazing permittee, New Mexico authorities removed certain of the protected burros from federal land and sold them at auction. The federal Bureau of Land Management then demanded that New Mexico recover and return them. Instead, the state sued the Secretary of the Interior to have the federal act declared unconstitutional. The lower court agreed with the state, distinguishing Hunt, Chalk, and Udall on the grounds that in those cases the federal efforts were lawful only because they served to protect the federal lands, whereas here the Act was designed solely to protect the animals.⁶⁶

The Supreme Court unanimously reversed the lower court on the grounds that protection of federal land is only a sufficient, and not a necessary basis for action under the Property Clause. While noting that "the furthest reaches of the power granted by the Property Clause have not yet been definitively resolved," the Court declared that that power "necessarily includes the power to regulate and protect the wildlife living there."⁶⁷ The Court's holdingt was a firm ratification of the controversial view expressed by Interior's Office of the Solicitor 12 years earlier. Moreover, adverting to issues raised but not definitively resolved 50 years earlier in Shauver and McCullagh, the Court observed that "it is far from clear … that Congress cannot assert a property interest in the regulated horses and burros superior to that of the State."⁶⁸

3. The Federal Commerce Power

The Kleppe decision and Missouri v. Holland clearly establish the Property Clause and the treaty-making power as sound sources of authority for the development of a body of federal wildlife law, notwithstanding the state ownership doctrine. A third source of federal authority, the power to regulate interstate commerce, has a more uncertain relationship to the state ownership doctrine. This uncertainty stems largely from Geer, which cast considerable doubt on the federal power under the Commerce Clause. However, Geer involved a question of the validity of state action rather than federal action. Moreover, the holding in Geer was narrowed considerably in Foster-Fountain Packing Company v. Haydel, which held that a state terminates its absolute control over the utilization of wildlife once it permits part or all of such wildlife to enter the stream of commerce.⁶⁹ Nevertheless, there is no SupremeCourt decision spelling out the scope of the federal wildlife regulatory power conferred by the Commerce Clause.

As has been previously described, the district court decisions in Shauver and McCullagh rejected claims that the Commerce Clause authorized the Migratory Bird Act of 1913. On the other hand, subsequent appellate decisions suggested strongly that the Migratory Bird Treaty Act could be sustained as a valid exercise of the commerce power wholly apart from the treaty power.⁷⁰ This conclusion was based upon the migratory character of the birds, and relied in large part upon the post-Holland case of Thornton v. United States, which held that grazing cattle which wandered freely across state lines were subject to federal regulation.⁷¹

If a federal power over wildlife can be based on the interstate movements of the animals themselves, then it arguably can find support in the interstate movements of those who utilize wildlife. The Secretary of the Interior made such an argument in Kleppe v. New Mexico, relying on the fact that wild horses and burros "are objects of interest to ameteur students of nature and professional scientists, who travel in interstate commerce to observe and study them."⁷² Although the Court had no occasion to pass upon it, this claim has some indirect support in decided case law. In Brown v. Anderson, for example, an Alaska fishing law was held to be an unlawful burden on interstate commerce because many of the fishermen it affected were from other states and moved in interstate commerce.⁷³

[7 ELR 50019]

Despite the uncertainty that still clouds the scope of federal authority to regulate wildlife under the Commerce Clause, there is little reason to believe that the authority it confers is of any lesser stature than that conferred by the Property Clause. Accordingly, federal regulation of wildlife pursuant to the Commerce Clause is probably unrestrained by the state ownership doctrine, notwithstanding Geer. In fact, if the assertion that the state ownership octrine is a bar to federal wildlife regulation has any validity at all, it has received no authoritative judicial support since the 1912 decision in The Abby Dodge, a decision which, though never overruled, has been given a quiet interment.⁷⁴

It is clear that the Constitution, in its Treaty, Property, and Commerce clauses, contains ample support for the development of a comprehensive body of federal wildlife law, and that to the extent such law conflicts with state law, it takes precedence over the latter. That narrow conclusion, however, does not automatically divest the states of any role in the regulation of wildlife. Rather, for reasons both of pragmatism and of political comity, it is clear that the states will continue to play an important role either as a result of federal forebearance or through the creation of opportunities for the states to share in the implementation of federal wildlife programs.⁷⁵ Beyond that, however, the state ownership doctrine, in tandem with the public trust doctrine from which it grew, may provide the basis for a state role in wildlife regulation quite unlike that which it has traditionally played.

C. New Directions for State Regulation: An Affirmative Duty to Protect the Public Trust

What the doctrine of state ownership of wildlife has traditionally been thought to authorize, in the absence of affirmative federal regulation or express constitutional restraint, is state regulation of private activity directly pertaining to wildlife within state borders. A smattering of cases within the last decade suggests the emergence of a wholly new use of the doctrine, a development which may breathe new life into it. These cases have explored the question of what rights the states may have, as a consequence of both the state ownership and the public trust doctrines, with respect to activities which, though not directly pertaining to the taking or utilization of wildlife, nonetheless have a substantial and adverse effect upon wildlife. Principally, these cases have considered whether states may recover monetary damages for losses to wildlife resulting from pollution of the environment.⁷⁶

One of the first of the recent cases of this variety was a Pennsylvania state court decision, Commonwealth v. Agway, Inc.⁷⁷ In that action, the state sued an allegedly negligent polluter of a stream to recover the commercial value of some 72,000 fish whose deaths were attributed to the defendant's pollution. In the view of the Pennsylvania court, the controlling question was whether the state's "property interest" in the fish was sufficient to support an action for 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.⁷⁸ 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.⁷⁹

The Agway decision has been criticized for its emphasis on possession, a "judicial tool used to settle disputes between individuals of equal stature" which [7 ELR 50020] need not be used to circumscribe the powers of a state in its sovereign capacity.⁸⁰ More fundamentally, the Agway decision offers only a perfunctory analysis of the Toomer and Missouri v. Holland decisions on which 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.⁸¹

The Agway decision was accepted uncritically by the North Dakota Supreme Court in State v. Dickinson Cheese Co., a factually similar case.⁸² However, in California v. S.S. Bournemouth, a case brought in federal court, the possibility of a different outcome was strongly suggested.⁸³ In that action, the California Department of Fish and Game sought to recovery 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."⁸⁴ Despite the court's suggestion that recovery for damage ultimately awarded were 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.

In Maryland v. Amerada Hess Corp.⁸⁵ and Maine v. M/V Tamano,⁸⁶ 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."⁸⁷ 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 — for the beneficiaries of the trust — i.e., the public"⁸⁸

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.⁸⁹

In the Riggan case, Tennessee brought suit against an individual whose negligent application of an herbicide caused the death of at least 11 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"⁹⁰ 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. 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 requiired 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 risks to wildlife.⁹¹ No case illustrates the problem better than State v. Jersey Central Power & Light Co.⁹²

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 [7 ELR 50021] 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 corpus."⁹³ On the issue of damages, however, the trial court was less forceful:

Although it appears generally that the environment may well have been adversely affected in many ways … the Court cannot speculate as to the monetary value of these damages and awards a judgment of $935, … or the market value attributed by the State's witness to the fish killed…."⁹⁴

Defendant sought a rehearing on the ground that there had been no proof of negligence. The trial court agreed on the evidentiary point, but nonetheless upheld its judgment on the basis that the defendant was strictly liable for creating "an ultra-hazardous situation." The Appellate Division agreed with the trial court that the state had an affirmative duty to seek recovery, and affirmed the lower court's decision, although it rejected strict liability as the basis of liability because "the pumping of cold water … cannot be considered an ultra-hazardous activity." Rather, the Appellate Division rested defendant's liability on negligence because it should have known that "a sharp reduction in water temperature would have damaged aquatic life."⁹⁵

The New Jersey Supreme Court reversed the judgment on the grounds that defendant's actions had not caused the death of the fish.⁹⁶ The court reasoned that the fish would have died whether or not the plant continued to pump cold water through its closed plant. At most, the continued pumping merely accelerated the fatal temperature drop. In perhaps the most significant passage in the opinion, the court stated the following:

It might be argued that defendant caused the death of the fish by attracting them to the Creek through the warming of the water therein incident to the operation of the plant; and then, having brought them there, killed them by discontinuing the plant operation, thus cooling the water. But this thesis cannot constitute a theory of culpable causation of the killing as it is undenied that the operation of the plant in the manner described was perfectly lawful….⁹⁷

Since the mere fact that an activity is performed lawfully does not serve to exempt that activity from liability for harm resulting therefrom if the activity is, in contemplation of law, an "ultrahazardous" activity, the above passage must mean that defendant's operation of the plant did not constitute an ultrahazardous activity. The represents a considerable broadening of the Appellate Division's holding that the mere pumping of water could not constitute an ultrahazardous activity, and invites the question of just what is, for purposes of parens patriae suits to recover for wildlife losses, an ultrahazardous activity.

The doctrine of strict liability for ultrahazardous activities is a comparatively recent development in Anglo-American jurisprudence. Its origins can be traced to the 1868 decision of the House of Lords in Rylands v. Fletcher.⁹⁸ As originally understood, the doctrine applied to any activity which necessarily imposed an extreme danger to others, and which constituted a "non-natural" use of land. As adopted into modern American law, the doctrine applies to any activity which "necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care" and "is not a matter of common usage."⁹⁹ Since there can be little doubt that the operation of a nuclear power plant "necessarily imposes a risk of serious harm" to wildlife "which cannot be eliminated by the exercise of the utmost care," the New Jersey Supreme Court may have felt that wildlife cannot be considered the "person, land or chattels of others." On the other hand, the court expressly stated that it was not deciding whether the doctrine of strict liability could apply in an action by the state as a public trustee.

Alternatively, the court may have felt that the operation of a nuclear power plant was a "common usage" or at least not a "non-natural" use of land. That explanation would better serve the Appellate Division, which viewed the relevant activity merely as the pumping of water. The leading American authority on tort law "predicted with a good deal of confidence" in 1971 that the use of nuclear energy was "an area in which no court will … refuse to recognize and apply the principle of strict liability found in the cases which follow Rylands v. Fletcher."¹⁰⁰ Perhaps five years later the New Jersey court was simply unable to regard nuclear energy plants as unnatural.¹⁰¹ Perhaps it was simply unwilling to impose any sort of liability for acts harmful to wildlife.

[7 ELR 50022]

Jersey Central thus makes clear that the extension of the state ownership doctrine represented by the recent cases described here will be faced with many pitfalls. To the extent that that small body of case law can be summarized, it would appear that in at least some states, the state may sue in its capacity as public trustee for injuries to widlife resulting from negligent private activity. Suits for injuries resulting from non-negligent activity, however, will probably be allowed, if at all, only when the causative activity meets the classic test of being an ultrahazardous activity. There is, moreover, at least a hint that the courts will be more restrictive in defining what activities are ultrahazardous for wildlife than they have been for defining activities ultrahazardous for humans. Finally, where recovery is allowed, the measure of damages should be at least the demonstrable market value of the wildlife destroyed, and perhaps even greater.

To conclude the first part of this article, it is apparent that the doctrine of state ownership of wildlife has never had a fixed and generally accepted meaning. It is clear now, some 80 years after its birth in Geer, that it is far narrower in scope than its most avid proponents have asserted. On the other hand, it is a doctrine potentially broader in some respects than those same persons ever imagined. Moreover, it is a doctrine which will probably never have a fixed and definite meaning, but which will continue to evolve and acquire new content. Most importantly, the evolution of the doctrine can and ought now to take place in harmony with the simultaneous development of a distinct corpus of federal wildlife law.

II. Limitations on State and Federal Wildlife Regulation

A. Constitutional Limitations Against Discrimination in the Regulation of Wildlife

It has been shown that in the year of the nation's centennial, the Supreme Court in McCready v. Virginia upheld the validity of a state statute totally excluding non-citizens of the state from planting oysters in its tidewaters.¹⁰² Despite the Court's subsequent suggestion in Manchester v. Massachusetts that it had some doubts about the breadth of its McCready holding, it went on in the early decades of the twentieth century to uphold two other plainly discriminatory statutes.¹⁰³ In the first of these, Patsone v. Pennsylvania, the Court upheld a Pennsylvania statute prohibiting unnaturalized foreign-born residents from killing wild game, and, in furtherance thereof, making the possession by such persons of shot guns and rifles unlawful.¹⁰⁴ A convicted defendant challenged the constitutionality of the statute under the equal protection clause of the Fourteenth amendment.¹⁰⁵ In an opinion noteworthy by today's standards for its reluctance to probe the motivation of the legislature, the Court simply considered whether "the protection of wild life … warrants the discrimination," and concluded that it could not deem the assumption "that resident unnaturalized aliens were the peculiar source of the evil that it desired to prevent" to be "manifestly wrong."¹⁰⁶

Ten years later, in Haavik v. Alaska Packers Association, an enactment of the Alaskan territorial legislature imposed a $5 tax on each non-resident fisherman in the state.¹⁰⁷ The Court found the tax not to be prohibited by the "privileges and immunities clause of the Constitution," because it was uniformly applied to all non-residents and did not discriminate as against non-citizens.¹⁰⁸

In two decisions in 1948, the Supreme Court dramatically changed its course, and held that the privileges and immunities clause and the equal protection clause of the Fourteenth Amendment imposed strict limits on the nature of the states wildlife regulation. In Takahashi v. Fish and Game Commission the Court had before it a California statute which, then originally passed during the period of Japanese evacuation, denied commercial fishing licenses to alien Japanese.¹⁰⁹ After the war, the law was amended so as to apply to all persons ineligible for United States citizenship, a classification which still had the heaviest impact on the Japanese.

Mr. Takahashi, who had fished the waters of California pursuant to state license from 1915 to 1942, sued in the California state courts to compel the state to issue him another license. Although successful initially, Takahashi failed in the Supreme Court of California, which upheld the law on the basis of California's "proprietary interest in fish in the ocean waters within three miles of the shore."¹¹⁰ When Takahashi sought review in the Supreme Court of the United States, he was supported by some of the best legal talent in the country. Amicus briefs on his behalf were filed by the Attorney General and the Solicitor General of the United States, Thurgood Marshall for the National [7 ELR 50023] Lawyers Guild, and numerous others; his case was argued before the Court by Dean Acheson. In reversing the California court, the Supreme Court, through Justice Black, quoted the "slender reed" passage of Justice Holmes' opinion in Missouri v. Holland,¹¹¹ and then stated the following:

We think the same statement is equally applicable here. To whatever extent the fish in the three-mile belt off California may be "capable of ownership" by California we think that "ownership" is inadequate to justify California in excluding any or all aliens who are lawful residents of the State from making a living by fishing in the ocean off its shores while permitting all others to do so.¹¹²

In upholding the claim of the Georgians, the Court distinguished many of its prior precedents enunciating or relying upon the state ownership doctrine. Thus, McCready was distinguished on the basis that it concerned sedentary shellfish in inland waters, Haavik on the basis that it concerned the power of Congress rather than the power of a state, and Patsone on the basis (hardly believable) that "persuasive independent reasons justifying the discrimination" were advanced there.¹¹⁵ The court summed up its view of the ownership doctrine in the following terms:

The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a state have power to preserve and regulate the exploitation of an important resource. And there is no necessary conflict between that vital policy consideration and the constitutional command that the State exercise that power … so as not to discriminate without reasons against citizens of other states.¹¹⁶

The Court also struck down in Toomer a statute requiring owners of shrimp boats fishing within three miles of South Carolina to dock at a South Carolina port, unload, pack and stamp their catch before shipping it to another state. The state argued that if Geer permitted a state to prohibit altogether the shipment of its wildlife to other states, then surely it could impose lesser restrictions on export. The Court rejected the state's contention on authority of Foster-Fountain Packing Company v. Haydel.¹¹⁷ Interestingly, Justices Frankfurter and Rutledge, who in a separate opinion expressed the view that the state's "technical ownership" of its wildlife resources exempted its regulation thereof from the privileges and immunities clause, nevertheless concurred with the majority on the basis that the state statutes were offensive to the Commerce Clause.

Toomer and Takahashi thus enunciated broad limitations on the scope of state regulatory authority over wildlife. Nevertheless, the opportunities for distinguishing either decision on some factual ground are limited only by the imaginations of lawyers. Toomer itself carefully noted that a differential fee structure which "merely compensate[d] the State for any added enforcement burden [non-residents] may impose or for any conservation expenditures from taxes which only residents pay," would be permissible.¹¹⁸ Despite a myriad of state efforts to avoid their essential holdings,¹¹⁹ only one has thus far been sustained. In that action, Montana Outfitters Action Group v. Fish and Game Commission of the State of Montana, a three-judge district court upheld a differential fee structure which required non-residents desiring to hunt elk to purchase a "combination license" at a cost of $225, whereas resident hunters desiring to hunt elk could do so at a total cost of only $9.¹²⁰ Rejecting the escape route left open in Toomer, the court expressly found that the differential "cannot be justified on any basis of cost allocation."¹²¹ Instead, the court based its opinion on the fact that the right to hunt is not a "fundamental right" but rather "no more than a chance to engage temporarily in a recreational activity…."¹²² As such, the court felt that it could evaluate the restrictions on that right in terms of whether they bore some "rational relationship to legitimate State purposes." The required rational relationship was held to be present because the discrimination against non-residents may have enhanced the willingness of residents to underwrite the state's program for elk conservation.¹²³

[7 ELR 50024]

In recent years, the Supreme Court has given some indication that it may be inclined to narrow the scope of its earlier rulings even in the context of commercial rather than recreational activities. In Reetz v. Bozanich, for example, the Court abstained from ruling on a challenge to an Alaska statute limiting commercial net gear salmon fishing licenses to persons who previously held such a license for specific salmon registration areas or who held any other commercial fishing license for a period of three years in a particular registration area.¹²⁴ Because the action alleged a violation of a provision of the Alaska constitution which had never been construed by an Alaskan court, the Supreme Court determined that the matter should first be considered by the state courts. Moreover, in its current term the Court will hear one and perhaps two cases in which the broad principles of Toomer and Takahashi could be reexamined. In one, Douglas v. Seacoast Products, Inc.,¹²⁵ the Court has noted probable jourisdiction, and in the other, Commonwealth v. Westcott,¹²⁶ a petition for certiorari has been granted. Both cases seek review of lower court decisions striking down state statutes which prohibit non-residents from engaging in certain commercial fisheries in the states' waters. The parallels between the Douglas case and earlier decisions of the Court are rather striking. As in McCready, the state whose law is challenged is Virginia, and as in Manchester, the fishery sought to be regulated is that of menhaden. Moreover, the Virginia statute purports to exclude not only non-residents (as in Toomer), but also aliens (as in Takahashi). If the Court is to uphold the Virginia statute, it must either skirt very carefully around some rather well established precedents, or overrule them altogether.

B. Limitations on State and Federal Wildlife Regulation Arising from Indian Treaties

It has been clear, at least since Missouri v. Holland, that the treaties of the United States not only impose obligations upon the federal government, but also supersede any conflicting state laws. In a sense, treaties between the United States and the various Indian tribes are no different from other types of treaties. However, because of certain special aspects of Indian treaties, and most particularly because of very substantial limitations which recent federal court decisions construing such treaties have imposed on state wildlife regulatory efforts, they are deserving of special treatment here as a unique qualification on both state and federal regulation of wildlife.¹²⁷

The Supreme Court has often been called upon to consider the relationship between the states' authority to regulate wildlife and the rights of hunting and fishing reserved by the Indians in their treaties. One of the first such occasions was in 1896 in Ward v. Race Horse.¹²⁸ The author of the Court's opinion was Justice White, who had written the majority opinion in Geer v. Connecticut earlier the same year.¹²⁹ Not unexpectedly, Justice White was extremely solicitous of the claims of the state to exclusive regulation of the wildlife within its borders.

Race Horse was a Bannock Indian who had been convicted of killing elk in violation of Wyoming law. In a habeas corpus proceeding, he contended that his conviction contravened rights guaranteed him by an 1869 treaty reserving to the Bannocks "the right to hunt on the unoccupied land of the United States, so long as game may be found thereon." In 1890, however, the State of Wyoming was admitted to the Union, and soon thereafter it enacted game laws which it claimed to be applicable even on federal land within the state. Since Race Horse's offense was committed on such federal lands, the issue of treaty rights versus state law was squarely presented.

In Justice White's view, there was no need to decide the constitutional issue (later resolved in Missouri v. Holland) because nothing in the treaty evidenced a congressional intent to supersede state law. In thus discerning the congressional intent, however, Justice White assumed the conclusion of the very constitutional issue he purported not to decide (much as he was to do again later in The Abbey Dodge).¹³⁰ That is, his reasoning that the treaty could not have been intended to create a perpetual right of hunting on federal land in derogation of state law was based on the following rough syllogism: first, whatever treaty rights were retained could be extinguished by conveying the federal lands within the state to private owners, even though such private owners would thereby acquire no authority over the game on such lands; second, when the United States "called into being a sovereign state, a necessary incident of whose authority was the complete power to regulate the killing of game within its borders,"¹³¹ the treaty rights retained could certainly not be any greater; therefore, the creation of the State of Wyoming extinguished the treaty rights of the Bannocks to hunt on federal lands. It can readily be seen that the crucial premise of Justice White's syllogism was the second, which [7 ELR 50025] assumed that the federal government lacked authority to regulate wildlife on federal land within the states, an assumption finally rejected definitively in 1976 in Kleppe v. New Mexico.¹³²

The chary interpretation given by Justice White to the Indian treaty in Race Horse was soon to be abandoned by the Supreme Court in favor of rules of construction which attempted to give Indian treaties the meaning as understood by the Indians when they entered into the treaties.¹³³ In 1905 in United States v. Winans,¹³⁴ for example, the Court for the first time considered one of the so-called "Stevens treaties"¹³⁵ and held that its reservation to the Yakima Indians of the "right of taking fish at all usual and accustomed places, in common with the citizens of the Territory" entitled the Indians to the use of privately-owned land for fishing at such usual places even though the landowner had been granted a license by the state to use a fish wheel there, the practical effect of which was to exclude all others from fishing at that place. Only Justice White dissented.

The Winans decision was extended in 1919 in Seufert Brothers Co. v. United States to apply to customary Indian fishing grounds located outside the area ceded by them.¹³⁶ Thus, Winans and Seufert established the supremacy of Indian off-reservation treaty rights in relation to the rights of private landholders, while Race Horse seemed to make such treaty rights subordinate to the authority of the states to regulate wildlife.¹³⁷

The first major break in the Race Horse rule came in 1942 in Tulee v. Washington, where the Supreme Court held contrary to yet another Stevens treaty a requirement of the state that Indians purchase fishing licenses.¹³⁸ The state had argued that since the only right guaranteed to the Indians by the treaty was the right to fish "in common with" other citizens, the state had only the duty to ensure that its regulations not be discriminatory against the Indians. In rejecting that argument, and requiring that the state's regulation also be "necessary for the conservation of fish," the Supreme Court planted the seed of a storm of controversy now raging in the Pacific Northwest.¹³⁹

The Court's next opportunity to refine its "necessary for the conservation of fish" standard came in1968 in Puyallup Tribe v. Department of Game.¹⁴⁰ In that action, the State of Washington brought suit in a state court to enjoin certain Indians from violating state regulations restricting the use of nets for salmon and steelhead fishing. The injunction entered by the trial court, which required the Indians to abide by all state fishing regulations, was modified by the state supreme court to require adherence only to those regulations which were "reasonable and necessary." The state supreme court remanded the case to the trial court for a determination of which regulations met that test. Before the remand, however, the United States Supreme Court reviewed and affirmed the decision of the state supreme court, announcing that although "[t]he right to fish 'at all usual and accustomed places' may … not be qualified," nevertheless, the "manner of fishing, the size of the take, the retriction of commercial fishing and the like may be regulated by the state in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians."¹⁴¹ The "appropriate standards" referred to by the Court were presumably the standards of "reasonable and necessary" established by the state court.

The Supreme Court's efforts to articulate the permissible standards for state regulation of off-reservation treaty rights fishing failed to result in very clear guidance to the affected states. With the legal situation in this rather confused posture, Charles A. Hobbs, a former chairman of the Indian Affairs Committee of the American Bar Association, wrote an article in which he proposed a simple, but in retrospect, shattering, suggestion.¹⁴² Hobbs argued that the heart of the problem was the guaranteeing of a "fair share" of the fishery resource to the Indians, and that since the state fishery departments had failed to resolve the problem in such terms, it became the duty of the courts to "consider the question of 'necessity' from the perspective of what is a fair share of the fish for the Indians."¹⁴³

The Supreme Court was forced to come face to face with Hobbs' suggestion when the Puyallup case came back before it in 1973.¹⁴⁴ After the Court's first decision in the case, the Washington Department of Fisheries relaxed its restrictions on net fishing for salmon. However, the Department of Game continued its total prohibition of net fishing for steelhead trout and the state supreme court upheld the ban because "the catch of the steelhead sports fishery alone in the Puyallup River leaves no more than a sufficient number of steelhead for escapement necessary for the conservation of the steelhead fishery in that river."¹⁴⁵ The effect of state regulation, therefore, was to allocate the entire harvestable run of steelhead to the non-Indian sports fishery, leaving none available to the Indians. The Supreme Court, through Justice Douglas, held that the state regulation discriminated unlawfully against the Indians and [7 ELR 50026] declared that the harvestable run of steelhead "must in some manner be fairly apportioned between Indian net fishing and non-Indian sports fishing…."¹⁴⁶ The Court itself did not prescribe the manner of apportionment, but left that critical questionfor the lower courts to decide.

The Supreme Court's most recent pronouncement on the issue of state regulation versus Indian treaty rights came in 1975 in Antoine v. Washington, a case involving hunting rather than fishing rights.¹⁴⁷ In that case the Court elaborated upon the "appropriate standards" test of the first Puyallup decision, and put forth a dual understanding of the standard of "necessity":

The "appropriate standards" requirement means that the State must demonstrate that its regulation is a reasonable and necessary conservation measure, [citing Tulee and Puyallup II] and that its application to the Indians is necessary in the interest of conservation.¹⁴⁸

One year prior to the Antoine decision, Senior District Judge Boldt, in the Western District of Washington, took the bold step of translating the vague and general admonitions of the Supreme Court into concrete terms. His decision in United States v. Washington, which soon became known widely as "the Boldt decision," attempted for the first time ever to assure to the Indians their "fair share" of the fishery resource which Charles Hobbs had argued five years earlier that the courts must ultimately determine.¹⁴⁹ The result was to send shock waves throughout the Pacific Northwest, and to place a qualification on the state ownership theory unlike any previously known.

The Boldt decision concerned the rights of a number of tribes of Indians under various of the Stevens treaties to fish in the Puget Sound and Olympic Peninsula watersheds and the offshore waters adjacent to those areas. Undoubtedly aware of the enormity of his decision, Judge Boldt took great pains to document in detail its legal and factual bases. The opinion, more than a hundred pages in length, and containing both a table of contents and index, contains a detailed analysis of the major state ownership cases and of the major Indian treaty rights cases. As to the factual underpinnings of the decision, Judge Boldt relied heavily upon a "joint Biological Statement" agreed to by the parties, and utilized reports and testimony of professional anthropologists.

Thus armed, Judge Boldt declared that:

Every regulation of treaty right fishing must be strictly limited to specific measures which before becoming effective have been established by the state, either to the satisfaction of all affected tribes or … of the court, to be reasonable and necessary to prevent demonstrable harm to the actual conservation of fish.¹⁵⁰

Further, he defined "reasonable and necessary" measures to include those which are appropriate to their purpose and "essential to conservation," and limited "conservation" to the "perpetuation of a particular run or species of fish."¹⁵¹ thus excluding such purposes as assuring a maximum sustained harvest and providing for an orderly fishery.¹⁵² Moreover,he prohibited the state from any sort of regulation whatsoever of the treaty rights fishing of those tribes of Indians determined to be qualified for self-regulation according to criteria set forth in the opinion.

The most far-reaching aspect of the Boldt decision, however, was the determination that the treaty language "in common with" meant "sharing equally the opportunity to take fish at 'usual and accustomed grounds and stations.'" (emphasis in original). Accordingly, Judge Boldt declared that the Indians must be given the opportunity to harvest 50 percent of the fish (not counting those necessary for the minimum conservation purpose of assuring adequate escapement) which "absent harvest en route, would be available for harvest at the treaty tribes' usual and accustomed fishing places."¹⁵³ Finally, Judge Boldt appointed a "fishmaster" to oversee implementation of the court's decision, and retained continuing jurisdiction to make such modifications in the decree as might be necessary.

Only a few months after the Boldt decision, Judge Belloni in Oregon modified a decree entered five years earlier in Sohappy v. Smith so as to apply the same 50 percent apportionment to the treaty Indians fishing in the Columbia River system.¹⁵⁴ Judge Belloni's decision applied both to Oregon and Washington.

Compliance with the Boldt and Belloni decisions has not been easy. Soon after the Boldt decision was handed down, a group of Puget Sound commercial fishermen brought suit in a Washington county court and obtained a temporary injunction against a proposed state regulation reducing the fishing time for gill netters and purse seiners in the Puget Sound marine fishery.¹⁵⁵ Undeterred, Judge Boldt took the rather drastic step of ordering the Washington Department of Fisheries not to heed the directives of the state court.¹⁵⁶

A very similar situation developed with respect to the implementation of Judge Belloni's amended decree. When the State of Washington proposed to limit the ocean troll fishery so as to achieve compliance with the decree, yet another group of non-Indian commercial fishermen went into the same county court and obtained an injunction against the proposed limitations.¹⁵⁷ Judge Belloni, too, however, responded with his own injunction [7 ELR 50027] closing the ocean commercial troll fishery for a prescribed period.¹⁵⁸

Perhaps the most portentous development arising from the Indian treaty cases, and in particular the Boldt decision, is a presently pending suit by the State of Idaho against the States of Washington and Oregon.¹⁵⁹ In that suit, brought as an original action in the Supreme Court, Idaho has asked the Court to compel the two defendant states to admit it to the Columbia River Fish Compact, an interstate compact under which Washington and Oregon jointly regulate the commercial fishery for anadromous fish in the Columbia River.¹⁶⁰ In addition, Idaho has asked the Court to order an "equitable apportionment" of such fish, because without such relief, Idaho alleges, Oregon and Washington will continue to regulate the Columbia River fishery in their own interests and in total derogation of the interests of Idaho.

Whether the Idaho suit represents an extension or a limitation of the state ownership doctrine depends on whether one takes the view of Idaho or of Oregon and Washington. Idaho's basic argument is that fish spawned naturally in its waters or introduced from its hatcheries are its fish, and other states, through whose territories such fish pass, must recognize and protect Idaho's rights thereto. Oregon and Washington, on the other hand, argue that the logic of Idaho's position applies equally to all migratory animals of whatever type, and thus qualifies the ownership right which any state may assert over migratory animals.¹⁶¹ Rather than an extension or a limitation of the state ownership doctrine, the suit more convincingly confirms the futility of trying to couch a state's regulatory authority over wildlife in terms of "ownership."

While most of the reported litigation stemming from Indian treaties has concerned state wildlife regulation, there has also been some concerning federal regulation. Although Congress has the power unilaterally to abrogate or modify existing treaty rights,¹⁶² the courts have been unwilling to infer an intent to do so, absent an explicit expression from Congress.¹⁶³ Thus, in United States v. Cutler, the Migratory Bird Treaty Act was held inapplicable to on-reservation hunting by Shoshone Indians.¹⁶⁴ Similarly, in United States v. White, the Bald Eagle Protection Act was held not to abrogate existing Indian rights.¹⁶⁵ A keener awareness of the existence of Indian treaty rights as a result of these and related decisions involving state regulation has led to the creation of special, often complex, exemptions for certain Indians in recent federal wildlife legislation.¹⁶⁶ Whether those exemptions supplant or merely supplement pre-existing rights is seldom explicitly stated.

1. 41 U.S. (16 Pet.) 234 (1842).

2. Id. at 264.

3. Id. at 262.

4. Id. at 263.

5. Id. at 264. One recent commentator, in a provocative article, has argued persuasively that Taney's decision vastly expanded the Magna Charta's limited prohibition against the creation of private fishing rights into a much broader prohibition against the creation of any sort of private rights in the submerged lands of navigable waters. See MacGrady, The Navigability Concept in the Civil and Common Law: Historical Development, Current Importance, and Some Doctrines that Don't Hold Water, 3 Fla. St. U.L. Rev. 513, at 554-55 and 589-91 (1975). Nonetheless, that "public trust doctrine," as it has come to be called, is now well established in American Law. See Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970).

6. 41 U.S. at 267.

7. Id. at 263. Technically, the holding in Martin v. Waddell applied only to the original 13 states. It was soon held to apply as well to all subsequently admitted states in Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845). Legislation admitting new states to the nation has traditionally included an "equal footing" clause which grants to each new state the same rights and power held by existing states. For an application of the equal footing doctrine to the question of state authority over wildlife, see Ward v. Race Horse, 163 U.S. 504 (1896), discussed at text accompanying notes 128-32, infra.

8. See, e.g., Act of July 27, 1868, ch. 273, 15 Stat. 240 (repealed 1944), prohibiting the killing of certain fur bearing animals in the territory and waters of Alaska; Act of February 9, 1871, 16 Stat. 593 (repealed 1964), creating the Office of the United States Commissioner of Fish and Fisheries "for the protection and the preservation of the food fishes of the coast of the United States;" Act of February 28, 1887, ch. 288, 24 Stat. 434, regulating the importation of mackerel into the United States; and Act of May 7, 1894, ch. 72, 28 Stat. 73, prohibiting hunting in Yellowstone National Park.

9. 59 U.S. (18 How.) 71 (1855).

10. "The Congress shall have power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…." U.S. Const. art. I, § 8, cl. 2.

11. 59 U.S. at 75.

12. Id.

13. See text accompanying notes 120-126, infra.

14. 94 U.S. 391 (1876).

15. Id. at 394.

16. Id. at 395.

17. 139 U.S. 240 (1891).

18. Id. at 265.

19. Id.

20. Id.

21. See text accompanying notes 114-15.

22. 161 U.S. 519 (1896).

23. Id. at 522.

24. Id. at 528-29.

25. Id. at 530.

26. Id. at 530-31. This second argument was obviously of a "bootstrap" nature, because it was the state's own prohibition of export, the very matter under dispute, that confined the commerce in game to intrastate commerce.

27. Id. at 534.

28. Id. at 528.

29. Ch. 553, 31 Stat. 187 (current version at 18 U.S.C. §§ 42-44, and 16 U.S.C. §§ 667e and 701 (1970)).

30. See note 10 supra.

31. Ch. 553, § 3, 31 Stat. 188 (1900) (current version at 18 U.S.C. § 43 (1970)).

32. Ch. 553, § 5, 31 Stat. 188 (1900) (current version at 16 U.S.C. § 667e (1970)).

33. See, e.g., State v. Shattuck, 96 Minn. 45, 104 N.W. 719 (1905); People v. Bootman, 180 N.Y. 1, 72 N.E. 505 (1904). Cf. New York ex rel. Silz v. Hesterberg, 211 U.S. 31 (1908).

34. Ch. 553, § 2, 31 Stat. 188 (1900) (current version at 18 U.S.C. § 42 (1970)).

35. "The Congress shall have power … To regulate Commerce with Foreign Nations…." U.S. Const. art. I, § 8, cl. 3.

36. Ch. 553, § 1, 31 Stat. 187 (1900) (current version at 16 U.S.C. § 701 (1970)).

37. 223 U.S. 166 (1912).

38. Act of June 30, 1906, ch. 3442, 34 Stat. 313 (repealed 1914).

39. 223 U.S. at 175.

40. Act of March 4, 1913, ch. 145, 37 Stat. 828 (repealed 1918).

41. 214 F. 154 (E.D. Ark. 1914), appeal dismissed, 248 U.S. 594 (1919).

42. 221 F. 288 (D. Kan. 1915).

43. "The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…." U.S. Const. art. IV, § 3.

44. Comment, Treaty-Making Power as Support for Federal Legislation, 29 Yale L.J. 445 (1920).

45. Convention for the Protection of Migratory Birds, Aug. 16, 1916, United States-Great Britain (on behalf of Canada), 39 Stat. 1702, T.S. No. 628.

46. Ch. 128, 40 Stat. 755 (1918) (current version at 16 U.S.C. §§ 703-711 (1970 & Supp. IV 1974)).

47. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land…." U.S. Const. art. VI.

48. 252 U.S. 416 (1920).

49. Id. at 434-35.

50. Coggins & Hensley, Constitutional Limits on Federal Power to Protect and Manage Wildlife: Is the Endangered Species Act Endangered?, 61 Iowa L. Rev. 1099, 1124-25 (1976), discuss various asserted limitations on the authority of the federal government to regulate wildlife through the treaty-making power and conclude that they are illusory.

51. Act of May 7, 1894, ch. 72, 28 Stat. 73.

52. Act of June 28, 1906, ch. 3565, 34 Stat. 536 (current version at 18 U.S.C. § 41 (1970)). Pelican Island refuge, established in 1903, is often regarded as the first federal wildlife refuge. See, e.g., Department of the Interior, United States Fish and Wildlife Service, Final Environmental Statement, Operation of the National Wildlife Refuge System, app. F (Nov. 1976). President Harrison's proclamation some 11 years earlier reserving Alaska's Afognak Island may in fact deserve that distinction. Harrison's proclamation reserved the island "in order that salmon fisheries in the waters of the Island, and salmon and other fish and sea animals, and other animals and birds … may be protected and preserved unimpaired." Proclamation No. 39, 27 Stat. 1052 (1892).

53. 278 U.S. 96 (1928).

54. Id. at 100.

55. 114 F.2d 207 (4th Cir. 1940).

56. Quoted in G. Swanson, Fish and Wildlife Resources on the Public Lands 15 (1969).

57. Id. at 32.

58. 410 F.2d 1197, 3 ELR 20450 (10th Cir.), cert. denied, 396 U.S. 961 (1969).

59. Id. at 1201, n. 6, 3 ELR at 20452.

60. Id. Coggins & Hensley, supra note 50 at 1150, argue that the states' fear of federal wildlife regulation is probably "founded less on loss of sovereignty … than on loss of revenue."

61. 410 F.2d at 1201, 3 ELR at 20452 (emphasis in original).

62. 426 U.S. 529, 6 ELR 20545 (1976).

63. 16 U.S.C. §§ 1331-1340 (Supp. IV 1974), ELR 41834, as amended by Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, § 404, 90 Stat. 2775.

64. 16 U.S.C. § 1331 (Supp. IV 1974).

65. Id. § 1333.

66. New Mexico v. Morton, 406 F. Supp. 1237, 6 ELR 20509 (D.N.M. 1975).

67. 426 U.S. at __, 96 S. Ct. at 2291-92, 6 ELR at 20547.

68. Id. at 2290, 6 ELR at 20546. It is puzzling that after seemingly freeing itself from the decades of confusion occasioned by the use of property concepts that typified its nine-teenth century decisions, the Court was unwilling to drop any reference to "property" interests in wildlife altogether.

69. 278 U.S. 1 (1928).

70. See, e.g., Cerritos Gun Club v. Hall, 96 F.2d 620 (9th Cir. 1938); Cochrane v. United States, 92 F.2d 623 (7th Cir. 1937).

71. 271 U.S. 414 (1926).

72. Brief for Appellant at 21.

73. 202 F. Supp. 96 (D. Alas. 1962). The fact that the fishermen affected were engaged in a commercial enterprise, unlike "amateur" students of nature, would appear to be unimportant under the principles of Caminetti v. United States, 242 U.S. 470 (1917).

74. Coggins & Hensley, supra note 50 at 1139-43, suggest a fourth, implied basis for federal regulation of wildlife, that being the inherent federal power to protect those wildlife species having "symbolic" value to the nation. Although this source of federal authority has not yet been tested in the courts, it has clearly been relied upon by Congress in enacting such wildlife legislation as the Wild Free-Roaming Horses and Burros Act, supra note 63, and the Bald Eagle Protection Act, 16 U.S.C. §§ 668-668d (1970 & Supp. IV 1974), ELR 41814.

75. Compare the respective roles of the state and federal governments in the implementation of the Federal Aid in Wildlife Restoration Act, 16 U.S.C. §§ 669-669i (1970), the Sikes Act Extension, 16 U.S.C. §§ 670g-670o (Supp. IV 1974), and the Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1362, 1371-1384, and 1401-1407 (Supp. IV 1974), ELR 41815, as amended by Fishery Conservation and Management Act of 1976, Pub. L. No. 94-265, 6404, 90 Stat. 331.

76. The rights considered here are those which may be asserted at common law, rather than those created by special statute. State legislation like the Florida Oil-Spill Prevention and Pollution Control Act, which imposes strict liability for "all costs of cleanup or other damage" resulting from oil spills, Fla. Stat. Ann. § 376.12, was upheld by the Supreme Court in Askew v. American Waterways Operators, Inc., 411 U.S. 325, 3 ELR 20362 (1973). Such general legislation, however, seldom describes with particularity the sort of "property" for which damage recovery is authorized, or spells out how its value is to be measured, thus leaving open the very questions that are most important in the common law actions.

Nor do the rights considered here include the rights of private parties to sue for injuries to wildlife in which they may have a "property" interest. For a discussion of thatproblem, see Comment, Oil and Oysters Don't Mix: Private Remedies for Pollution Damage to Shellfish, 23 Ala. L. Rev. 100 (1970).

77. 210 Pa. Super. 150, 232 A.2d 69 (1967).

78. 334 U.S. 385 (1948). The Toomer case is described in detail at text accompanying notes 113-118, infra. Briefly, it struck down a state regulatory scheme that discriminated against out of state commercial fishermen. In so doing, it described the state ownership doctrine as a "fiction." Id. at 402.

79. 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 continued expenditure of Commonwealth funds and efforts to protect, perpetuate, propagate and maintain populations of fish" and authorized civil suits in trespass against "persons 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 construing the 1968 law, and thus the question whether the state may legislate for itself the type of "ownership" found lacking in Agway has not been presented.

80. Comment, Animals Ferae Naturae — Commonwealth not Permitted to Recovery Damages in Trespass for Negligent Killing of Fish by Pollution, 72 Dick. L. Rev. 200 (1967).

81. Similarly, although Toomer considered the question of state authority to regulate private activity pertaining to wildlife, the limitation which it imposed on state regulation derived not from the state's lack of possession of the wildlife, but rather from express constitutional command.

82. 200 N.W.2d 59 (N.D. 1972).

83. 307 F. Supp. 922 (C.D. Cal. 1969), judgment granted 318 F. Supp. 839 (C.D. Cal. 1970).

84. 307 F. Supp. at 928.

85. 350 F. Supp. 1060, 2 ELR 20606 (D. Md. 1972), motion for relief denied, 356 F. Supp. 975 (D. Md. 1973).

86. 357 F. Supp. 1097, 3 ELR 20567 (D. Me. 1973).

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

88. 350 F. Supp. at 1067, 2 ELR at 20608.

89. Shelby Law No. 3 (1974).

90. Assignments of Error and Brief of Appellant, at 28.

91. 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 possibly very practical, extension in Reed, Should Rivers Have Running? Toward Extension of the Reserved Rights Doctrine to Include Minimum Stream Flows, 12 Idaho L. Rev. 153 (1976).

92. 69 N.J. 102, 351 A.2d 337, 6 ELR 20352 (1976).

93. 125 N.J. Super. 103, 308 A.2d 671, 674, 3 ELR 20840, 20841 (N.J. Super. Ct., Ocean Cty. 1973) (emphasis added).

94. Id.

95. 133 N.J. Super. 375, 389, 336 A.2d 750, 757 (1975).

96. 69 N.J. 102, 351 A.2d 337, 6 ELR 20352 (1976). The court also held that federal regulation of nuclear energy plants exempted them from state control.

97. 351 A.2d at 342, 6 ELR 20354.

98. L.R. 3 H.L. 330 (1868).

99. Restatement of Torts, §§ 519, 520.

100. W. Prosser, Law of Torts 516 (4th ed. 1971).

101. There is little in law that is more mind-boggling than determining what is a "non-natural" use for purposes of the doctrine of strict liability. In Rylands itself, the non-natural use was merely the construction of a reservoir in coal mining country. Of course, the problem can be avoided by legislatively imposing strict liability on a particular activity, as in the Florida Oil Spill Prevention and Pollution Control Act, discussed supra at note 76, which in effect declares the handling and transportation of oil to be a "non-natural" and "ultrahazardous" activity. Cf. Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761, 3 ELR 20167 (1972), where, for purposes of ascertaining the scope of the state's authority to protect wetlands, the Wisconsin Supreme Court declared that the development of certain lakefront property by its owner was contrary to "the essential natural character of his land … for which it was unsuited in its natural state." 201 N.W.2d at 768, ELR 20168.

102. 94 U.S. 391 (1876).See text accompanying notes 14-16 supra.

103. 139 U.S. 240 (1891). See text accompanying notes 17-21 supra.

104. 232 U.S. 138 (1914).

105. "No State shall … deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.

106. 232 U.S. at 144-45.

107. 263 U.S. 510 (1924).

108. "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States." U.S. Const. art. IV, § 2. In 1952, the Supreme Court characterized the Haavik decision as premised on the erroneous assumption that Congress had intended to relieve the Alaskan territorial legislature from constitutional restrictions applicable to the states. See Mullaney v. Anderson, 342 U.S. 415, 419-20 (1952).

109. 334 U.S. 410 (1948).

110. Id. at 414.

111. 252 U.S. 416, 434-35 (1920).The passage is quoted in full at text accompanying note 49 supra.

112. 334 U.S. at 421.

At issue in the Court's other 1948 decision, Toomer v. Witsell, were several South Carolina statutes governing commercial fishing in the three-mile zone off its coast.¹¹³ Principal among these was a provision imposing on non-resident commercial shrimp harvesters a license fee of $2,500, which was 100 times greater than the fee charged residents. A group of Georgia citizens brought suit, charging that the fee differential, which the Court found to be "so great that its practical effect is virtually exclusionary," contravened the guarantees of the privileges and immunities clause.¹¹⁴

113. 334 U.S. 385 (1948).

114. Id. at 396-97.

115. Id. at 400.

116. Id. at 402.

117. 278 U.S. 1 (1928).The Haydel case is described briefly at text accompanying note 69 supra.

118. 334 U.S. at 399.

119. See, e.g., Mullaney v. Anderson, supra note 108; Massey v. Apollonio, 387 F. Supp. 373 (D. Me. 1974) (three year residency requirement for a Maine lobster license), discussed in Note, Massey v. Appollonio: Is Residency an Impermissible Conservation Device?, 6 Envt'l L. 543 (1976); Brown v. Anderson, 202 F. Supp. 96 (D. Alas. 1962) (Alaska law permitting the emergency closure of certain salmon fishing areas to non-residents); Edwards v. Leaver, 102 F. Supp. 698 (D.R.I. 1952) (Rhode Island law restricting commercial menhaden licenses to residents). Cf., Lynden Transport, Inc. v. Alaska, 532 P.2d 700, 710 (Alas. 1975).

120. 417 F. Supp. 1005, 7 ELR 20046 (D. Mont. 1976).

121. Id. at 1008, 7 ELR 20047.

122. Id. at 1009, 7 ELR 20048. Query, if the right to hunt is not a "fundamental" right, how can it be deemed a property right for purposes of protection under the Fifth Amendment? See Alford v. Finch, 155 So. 2d 790 (Fla. 1963), and Allen v. McClellan, 75 N.M. 400, 405 P.2d 405 (1965). Cf. Swan Lake Hunting Club v. United States, 381 F.2d 238 (5th Cir. 1967).

123. 417 F. Supp. at 1010. The one dissenting judge made the trenchant criticism that under the majority's reasoning any discriminatory statute would be rationally related to the purpose of maintaining the political support of those benefitted by the discrimination. Thus, the case illustrates well the point made in Note, Legislative Purpose, Rationality and Equal Protection, 82 Yale L.J. 123, 128 (1972), that "[i]t is always possible to define the legislative purpose of a statute in such a way that the statutory classification is rationally related to it."

124. 397 U.S. 82 (1970).

125. No. 75-1255, prob. juris. noted, 33 U.S.L.W. 3608 (U.S. Apr. 26, 1976).

126. No. 75-1775, cert. granted, 45 U.S.L.W. 3249 (U.S. Oct. 4, 1976).

127. A great deal has been written recently on the subject of Indian treaty rights pertaining to hunting and fishing. See, e.g., Bean, Off-Reservation Hunting and Fishing Rights: Scales Tip in Favor of States and Sportsmen?, 51 N.D. L. Rev. 11 (1974); Burnett, Indian Hunting, Fishing and Trapping Rights: The Record and the Controversy, 7 Idaho L. Rev. 49 (1970); Hobbs, Indian Hunting and Fishing Rights, 32 Geo. Wash. L. Rev. 504 (1964); Hobbs, Indian Hunting and Fishing Rights II, 37 Geo. Wah. L. Rev. 1251 (1968); Johnson, The States Versus Indian Off-Reservation Fishing; A United States Supreme Court Error, 47 Wash. L. Rev. 207 (1972); Comment, State Power and the Indian Treaty Right to Fish, 59 Cal. L. Rev. 485 (1971); Comment, Indian Treaty Analysis and Off-Reservation Fishing Rights, 51 Wash. L. Rev. 61 (1975).

128. 163 U.S. 504 (1896).

129. 161 U.S. 519 (1896).

130. 223 U.S. 166 (1912). For a discussion of The Abbey Dodge, see text accompanying notes 37-39 supra.

131. 163 U.S. at 515.

132. 426 U.S. 529, 6 ELR 20545 (1976). For a discussion of Kleppe v. New Mexico, see text accompanying notes 62-68 supra.

133. These rules of interpretation actually pre-date the Race Horse decision. See Choctaw Nation v. United States, 119 U.S. 1, 28 (1886).

134. 198 U.S. 371 (1905).

135. The Stevens treaties include the various treaties negotiated with the Indian tribes of the Pacific Northwest by Oregon Territorial Governor Stevens in the 1850's. Each of these treaties contains language similar to that involved in the Winans case.

136. 249 U.S. 194 (1919).

137. As to on-reservation fishing and hunting, the states have long been assumed to be without any regulatory authority, though there is little definitive support for that conclusion. See Hobbs, Indian Hunting and Fishing Rights II, 37 Geo. Wash. L. Rev. 1251, 1253 (1969).

138. 315 U.S. 681 (1942).

139. Id. at 684. See text accompanying notes 149-61 infra.

140. 391 U.S. 392 (1968).

141. Id. at 398.

142. Hobbs, supra note 137.

143. Id. at 1260.

144. 414 U.S. 44 (1973).

145. Id. at 46.

146. Id. at 48.

147. 420 U.S. 194 (1975).

148. Id. at 207 (emphasis in original).

149. 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676, 5 ELR 20552 (9th Cir. 1975), cert. denied, 44 U.S.L.W. 3322 (Jan. 26, 1976).

150. 384 F. Supp. at 342.

151. Id.

152. See 520 F.2d at 686, 5 ELR at 20554.

153. 384 F. Supp. at 344. The Indians' share of the fish is exclusive of those taken on reservations or for ceremonial or subsistence purposes.

154. 302 F. Supp. 899 (D. Ore. 1969), aff'd as modified, 529 F.2d 570 (9th Cir. 1976).

155. Puget Sound Gill Netters Ass'n v. Tollefson, No. 50757 (Wash. Super. Ct. Thurston Cty. 1974).

156. Memorandum Decision on Plaintiffs' Request for Determination and Injunction (Sept. 12, 1974).

157. Northwest Trollers Ass'n v. Moos, No. 54521 (Wash. Super. Ct. Thurston Cty. June 1, 1976).

158. Order Implementing Injunction (June 22, 1976). Quite apart from the purely legal difficulties of obtaining compliance, the resistance of affected non-Indian fishermen has caused additional problems. The burning of an Indian fishing boat and repeated threats and gunshots between Indians and non-Indians have created a volatile atmosphere that can only be compared to that in communities torn by the strife of court ordered busing. See Washington Post, May 23, 1976, at Al; Christian Science Monitor, Nov. 17, 1976, at 20, col. 1. When the Court of Appeals affirmed the Boldt decision, Judge Burns, a district court judge sitting by designation, wrote a brief concurring opinion in which he likened the case before him to the school busing controversies, and in which he issued an extraordinarily stern rebuke to the state defendants:

[A]ny decision by us to affirm also involved ratification of the role of the district judge as a "perpetual fishmaster." Although I recognize that district judges cannot escape their constitutional responsibilities, however unusual and continuing duties imposed upon them, I deplore situations that make it necessary for us to become enduring managers of the fisheries, forests, and highways, to say nothing of school districts, police departments, and so on. The record in this case, and the history set forth in the Puyallup and Antoine cases, among others, make it crystal clear that it has been recalcitrance of Washington State officials (and their vocal non-Indian commercial and sports fishing allies) which produced the denial of Indian rights requiring intervention by the district court. This responsibility should neither escape notice nor be forgotten.

520 F.2d at 693.

159. Idaho ex rel. Andrus v. Oregon, No. 67, Orig. (Motion for Leave to File Complaint argued Nov. 8, 1976), 45 U.S.L.W. 3362. On December 7, 1976, the Court granted the motion, and permitted a complaint to be filed on the issue of whether Idaho should be given an equitable apportionment of fish runs in the Columbia River. 45 U.S.L.W. 4042.

160. 40 Stat. 515 (1918).

161. See Defendant Washington's Brief in Opposition (filed Aug. 4, 1975).

162. See Lone Wolf v. Hitchcock, 187 U.S. 553, 564-67 (1903).

163. See Pigeon River Co. v. Cox Co., 291 U.S. 138, 160 (1934); Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-13 (1968).

164. 37 F. Supp. 724 (D. Idaho 1941).

165. 508 F.2d 453 (8th Cir. 1974). But see United States v. Allard, 397 F. Supp. 429 (D. Mont. 1975).

166. See, e.g., the Marine Mammal Protection Act, 16 U.S.C. § 1371(b) (Supp. IV 1974), ELR 41816, and the Endangered Species Act of 1973, 16 U.S.C. § 1539(e) (Supp. IV 1974), ELR 41830.

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