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The Regulation of
Fish and Wildlife

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The ownership and power to regulate the disposition and use of fish, fishery, wildlife and game have proceeded through a full spectrum of inconsistencies and tug-of-wars over the years. Some of this has been attributable to inappropraite transferral of feudal principles and sovereign "prerogative" to American concepts of ownership. Some of this can be chaulked up to a modern disconnection from the foundations of law involving various subtleties:

00-40-00.gif (1005 bytes)     Sovereign lands (the sea and its arms/Royal Rivers,) navigable streams and public trust

00-40-00.gif (1005 bytes)     "Fishery" as a function of real property, also common right of piscary;

00-40-00.gif (1005 bytes)     "Take" as the establishment of conditions constituting original acquisition of property in wild things, (ferae naturae,) through hunting and fishing;

00-40-00.gif (1005 bytes)     The concept of "res nullius," (without owner,) as opposed to res communes,. (public domain,) and  "commons," (co-jointly owned by all);

00-40-00.gif (1005 bytes)     The territorially related jurisdiction of the State to exercise its "police powers" to regulate the exploitation of natural resources important as a food source (including hunting);

00-40-00.gif (1005 bytes)     The inability of a Treaty to create federal power over domestic matters not authorized by the Constitution of the United States;

00-40-00.gif (1005 bytes)     The supremacy of the legitimate federal exercise of the  "Privileges and Immunities" and "Commerce" clauses; and

00-40-00.gif (1005 bytes)     The limited application of the "Property Clause" as applies only to Washington, D.C. and legitimate "federal enclaves."

(Links lead to discussions of important concepts covered in other sections that should be understood as a foundation to this section.)


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