The idea of owning wildlife, free creatures unaware of laws and policies that pertain to them, can be a bit odd. However, just like there are rules and policies regarding how wildlife and natural resources are protected, there are rules and policies regarding wildlife ownership.
Before the colonization of North America, the British model of wildlife ownership was limited to the King having full ownership of all living wildlife. Only the King could grant rights to hunting, land, and fishing to people of his choosing at will. The King would even gift these rights to individuals other than the landowner. In essence, the King would manage all natural resources and wildlife for the people and remained the only one to own the rights.
Later on, North America decided to handle wildlife ownership much differently than Britain. In this case, there was no monarch to own all of the land and all of the natural resources that lived on it. Upon arriving in North America, settlers exhibited a “take what we want/what we take is ours” mindset. This mindset transferred to the ways that Indigenous communities were mistreated and served as a basis for what North America would eventually be built on.
This way of thinking also transferred to the wildlife laws to come. There was a shift from wildlife as the good for those who use it, to the good of all. In North America, wildlife is held in the public trust as states act as managerial trustees for the public. The extent of the trust and responsibilities of the state are outlined within each state constitution. Here are a few examples:
- Pennsylvania: Natural resources are “the common property of all the people, including generations yet to come… for the benefit of all people.”
- Montana: “the right to a clean and healthy environment”
- Minnesota: “hunting and fishing and the taking of game and fish are a valued part” of the state’s heritage “and shall be forever preserved for the people” subject to management “by law and regulation for the public good.”
What does “Public Trust” mean anyway?
Put simply, North America claims that wildlife is owned by the people, but is managed by the state for the benefit of the people and the resource. This gives the state the ability to protect wildlife and other natural resources for all involved. The public has legal rights to enforce accountability through litigation and elections.
North America’s concept of public trust in regards to wildlife ownership is outlined in the Public Trust Doctrine. The Public Trust Doctrine (PTD) emphasizes the trustee relationship in the government to hold and manage wildlife and natural resources for the benefit of that resource and the public.
The U.S. Supreme Court case of Martin v. Waddell (1842) serves as the first federal court decision to affirm the PTD. Since the underlying land was owned by the state with the intention of common use by the people, this case concluded that the public held a right to fish in navigable and tidal waters in New Jersey.
Rule of Capture
The Rule of Capture states that an animal that is lawfully available for capture belongs to the first person that reduces it to actual possession. Mortally wounding it is enough if the hunter continues the chase. The New York case of Pierson v. Post (1805) exemplifies the meaning of the rule of capture. In this case, Post and his hunting dog chased and pursued a fox. Post was aware of the chase, and killed the fox and carried it off. Post claimed a legal right to the fox. At first, the lower court agreed with Post.
However, the judgment was later reversed. It was decided that merely finding and chasing a wild animal does not grant a person with possession or a legal right to it. The animal must instead be captured or killed in order to constitute possession. Some protections during the hunt include: (1) Groups can harass hunters, but cannot scare away wildlife, and (2) harassment is not allowed to dissuade a hunter from hunting.
When discussing capture on private land, hunting was legal on private, unenclosed land in North America for a long time. Today, many states express that public hunting is banned on all private land unless the hunter gains the landowner’s permission. Wildlife captured while trespassing becomes the property of the landowner, not the trespasser. A person who captured an animal in violation of game laws acquired no property interest in that animal. Property rights only extend to game as long as the animal is in possession or being actively pursued.
Rights on Private Land
Landowners have a legal right to reasonable harvest or to use wildlife for activities. Interfering with the landowner can bring charges of trespass, nuisance, or negligence. Federal, state, county, and local governments own about ⅓ of the land in the United States, whereas 2.3 is under private ownership. Landowners, including government landowners, own the land and thus the habitat on which fish and wildlife depend.
However, no entity owns the fish and wildlife, which is held in trust by the states to conserve for the benefit of its citizens and future generations. If wildlife damages private land, landowners cannot seek damages for animals they do not own but can recover damages for lost value.
Tribal Sovereignty
The settler mindset of complete entitlement to the land and wildlife upon colonization in North America was and continues to be damaging to Indigenous peoples and communities. It is important to recognize Indigenous sovereignty when it comes to natural resource use. Federally recognized Indigenous communities hold sovereignty over their territory and the wildlife within it.
Treaties are held between domestic dependent nations and their government, state government, and the federal government. Treaties have the same standing as federal statutes, meaning that they supersede state law and property rights. While extremely resilient, Aboriginal peoples continue to endure damaging hardships such as racism, oppression, and disconnectedness from their land.
There are a few key principles regarding nature. First is that nations have sovereignty over natural resources, although political boundary issues can arise with wide-ranging and migrating species. Second is the related principle of good neighborliness. Third includes principles of sustainable development to achieve inter and intragenerational equity. Last is the important practice of conservation and protection.
Nature is interdisciplinary which is why it is most efficient that all related policy is also interdisciplinary. Natural resource and wildlife regulations are most holistic when based on environmental needs, societal needs, and economic needs to make management decisions.
