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:
Sovereign
lands (the sea and its arms/Royal Rivers,)
navigable streams and public trust;
"Fishery"
as a function of real property, also common right of piscary;
"Take"
as the establishment of conditions constituting original acquisition
of property in wild things, (ferae naturae,)
through hunting and fishing;
The concept of "res nullius," (without owner,) as opposed to res communes,. (public domain,) and "commons," (co-jointly owned by all);
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);
The inability of a Treaty to create federal power over domestic matters not
authorized by the Constitution of the United States;
The supremacy
of the legitimate federal exercise of the "Privileges and Immunities" and
"Commerce" clauses; and
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.)
