"Conservation

Hunting and Fishing Laws as
"Police Powers"

The authority of the State government to regulate fish and game species derives, in part, from the state's police power to protect public health, safety and security. Regulation of the appropriation or "take" of edible fish and game to conserve the continued availability of the resource is the protection of the security of the subsistence "food supply" necessary for survival of the whole.

In the case of People of the State of New York Ex Rel. Silz v. Hesterberg, 211 U.S. 31 (1908,) the Court stated:

"...The acts in question were passed in the exercise of the police power of the state, with a view to protect the game supply for the use of the inhabitants of the state. It is not disputed that this is a well-recognized and often exerted power of the state, and necessary to the protection of the supply of game which would otherwise be rapidly depleted, and which, in spite of laws passed for its protection, is rapidly disappearing from many portions of the country.

"But it is contended that while the protection of the game supply is within the well-settled boundaries of the police power of a state, that the law in question is an unreasonable and arbitrary exercise of that power. That the legislature of the state is not the final judge of the limitations of the police power, and that such enactments are subject to the scrutiny of the courts, and will be set aside when found to be unwarranted and arbitrary interferences with rights protected by the Constitution in carrying on a lawful business or making contracts for the use and enjoyment of property, is well settled by former decisions of this court. Lawton v. Steele, 152 U.S. 137, 38 L. ed. 388, 14 Sup. Ct. Rep. 499; Holden v. Hardy, 169 U.S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; Dobbins v. Los Angeles, 195 U.S. 236, 49 L. ed. 175, 25 Sup. Ct. Rep. 18.

"The object of such laws is not to affect the legality of the taking of game in other states, but to protect the local game, in the interest of the food supply of the people of the state. We cannot say that such purpose, frequently recognized and acted upon, is an abuse of the police power of the state, and, as such, to be declared void because contrary to the 14th Amendment of the Constitution."

The case of Bayside Fish Flour Co. v. Gentry,  297 U.S. 422 (1936,) involved a California "reduction" corporation that manufactured fish flour for human consumption from sardines. Only a portion of the sardines was used for edible flour, the rest being converted into a meal used for chicken feed, fertilizer, fish oil, and other nonedible substances. A California law prohibited the waste of edible fish by restricting the portion of each fish that could be reduced to flour (a by-product approximating the amount that was offal.) The claim made was that this was unequal treatment favoring whole sardine "packers" over "reducers." The law was sustained on the basis of the police powers of the State to conserve edible resources.

Justice Sutherland delivered the opinion of the Court:

"...Whether the product is consumed within the borders of the state or shipped outside in interstate or foreign commerce are matters with which the act is not concerned. The plain purpose of the measure simply is to conserve for food the fish found within the waters of the state. Over these fish, and over state wild game generally, the state has supreme control..."

"The purpose of the legislation under consideration is to prevent unnecessary waste, and to conserve for food the fish supply subject to state jurisdiction. See People v. Monterey Fish Products Co., 195 Cal. 548, 557-559, 234 P. 398, 38 A.L.R. 1186. If the Legislature was of the view-as evidently it was-that the process of packing on the whole would not interfere with the effectuation of this policy while the process of reduction would do so, unless carefully limited to prevent excessive operations, we are unable to perceive any reason for saying that such view was without reasonable basis. By the process of packing-that is, canning or preserving-fish, the original form of the edible portions of the fish is not destroyed as it is by the process of reduction, by which those portion are broken down into a loose meal or flour. In the latter case it is obvious that the product may be readily diverted to other purposes than human consumption, such as chicken feed, fertilizer, etc. It is equally obvious that such a diversion is not likely to happen in the case of canning or preserving, where the edible portions retain their original solid form. The state also points out that the process of reduction is simple, and the quantity which can be reduced in a given period of time greatly exceeds what can be utilized by packing, which is a much slower and more complicated process. These differences are enough to bring the classification within the permissible range of state power, so far as the equal protection clause of the Fourteenth Amendment is concerned."