Appendix A Organizational Alternatives and Regulation of U.S. Commercial Fisheries 



I. DOMESTIC FISHERIES, REGULATION, AND THE COMMERCE CLAUSE 



A. Ownership of Animals Ferae Naturae 



The roots of western man's inharmony with his environment and his attitudes toward exploitation of 

 natural resources were already evident in the Old Testament.' Whatever their origin there is deep-seated 

 tradition in our law that every man, as an individual, has an equal right to pursue and take to his own use 

 all such animals as aie ferae naturae, i.e., of a wild nature, the property of no one, but Uable to be seized 

 by the first occupant. Traditionally, also, the sovereign has asserted ownership of migratory species, 

 under a variety of theories. In Roman law, animals ferae naturae were considered to belong in common 

 to all the citizens of the state. Speaking to EngUsh common law, Blackstone asserted that such animals 

 were prerogative property vested in the King alone. The original 13 colonies succeeded to the rights of 

 the Crown, from which has developed in American law theories regarding the ownership of wild game 

 and fish. The rule of law which American courts have consistently recognized is that animals ferae 

 naturae are owned by the States, not as proprietors, but in their sovereign capacity as the representatives 

 and for the benefit of all their people in common. The property right is a common ownership . . . to be 

 exercised . . . as a trust for the benefit of the people, and not as a prerogative for the advantage of the 

 government as distinct from the people, or for the benefit of private individuals as distinguished from 

 the public good} 



But the "ownership" is not unqualified. It is the law that whoever claims title to animal /erae naturae 

 must first reduce them to possession.'' Where statutes speak of title to game and fish as being in the 

 State, they speak to the State's poUce power to regulate the taking and use of wild game and fish, do not 

 affect a landowner's interest in land,'' and have generally involved the relationship between a State and 

 an individual, not between a State and the Federal Goverimient.^ The ownership theory is not without 

 modification. "To put the claim of the State upon title is to lean upon a slender reed," said Mr. Justice 

 Holmes, because wild animals are in the possession of no one and "possession is the beginning of 

 ownership."* The ownership theory has been characterized as "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."^ 



B. State Authority To Regulate Fish and Wildlife 



Most of the Federal case law to date has dealt with the authority of the States to regulate the 

 exploitation of wildlife by individuals, and has consistently held that as between the State and the 

 individual the State can control and regulate the common property in game and fish within the 

 jurisdiction of the State. In McCready v. Virginia, 94 U.S. 395 (1876), at issue was the power of the 

 State of Virginia to prohibit citizens of other States from planting oysters within the internal or tide 



'white, Lynn Jr., "The Historical Roots of Our Ecologic Crisis," 155 Science 1203, March 10, 1967; Baer, Richard 

 A. Jr., "Land Misuse: A Theological Concern," The Christian Century, Oct. 12, 1966. 



'^Geer v. Connecticut, 161 U.S. 519, 529 (1896);Ma/-fi"n v. Waddell, 16 Pet. 3(,1 ; McCready v. Virginia. 94 U.S. 391; 

 Smith V. Maryland, 18 How. IX; Manchester v. Massachusetts, 139 U.S. 240; Lawton v. Steele, 152 U.S.133; Wardy. 

 Race Horse, 163 U.S. SM;Patsone v. Pennsylvania, 232 U.S. 138; United States v. McCullagh, 221 Fed. 288; United 

 States V. Shauver, 214 Fed. 154; Sih v. Hesterberg, 211 U.S. 31; Kennedy v. Becker, 241 U.S. 556. See also 

 Commonwealth v.Agway, Inc., 210 Pa. Superior Ct. 150 (1967). 



^Pierson v. Post, 3 Caines 175 (N.Y., 1 805). See also Koop v. United States, 296 F.2d 53 (CCA. 8, 196 1). 



'^S^i.McKee v. Gratz, 260 U.S. 127, 135 (1922). 



^Geer v. Connecticut, supra; Ward w. Race Horse, supra; Foster-Fountain Packing Co. v.Haydel, 278 U.S. 1 (1928). 



^Missouri V. Holland, 252 U.S. 416, 434 (1920). 



''roomer V. Witsell, 334 U.S. 385 (1948). 



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