"The Curious Legal History of the Original Outlaws"

Robert Hoskins wrote an interesting essay on the origins, evolution, and contradictions in wildlife law. He emailed it to me for consideration as a post. I think folks will find it very interesting.

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“The Curious Legal History of the Original Outlaws”

by Robert Hoskins

[Note: I originally published this essay in the May 1998 issue of Wyoming Wildlife under the pen name Philip Elkhorn].

CIVILIZED PEOPLES, especially those who raise domestic animals and crops or who manage big-game animals for human hunting, have until recently always considered predatory animals and pests to be outlaws–thieves who steal what humans believe they have produced with their own labor, or have a natural right to possess.

What we may not realize is that since the beginning of agriculture, humans have considered all wild animals to be outlaws that were outside or beyond human control–unlike domestic livestock. Ancient Roman law described wildlife as ferae naturae, or wild by nature. That wild animals were ferae naturae didn’t change the desire of humans to establish control over wildlife for human benefit. But humans have had to deal with wildlife’s incorrigible wildness first. Wild animals had lives and spirits of their own; humans could not possess them except under special conditions that usually involved death but always restraint.

Traditionally, the practical goal of wildlife law has been to determine if and when humans could hunt or trap wild animals and under what conditions, once taken, they can become a particular person’s property (Bean 1983; Naughton-Treves and Sanderson 1995). Also, the law still targets for destruction predators such as coyotes believed to be harmful to human economic interests. Those interests are almost always agricultural–such as maximum livestock production; predators interfere with maximum production.[1]

The problem of wildlife law is that wild animals ferae naturae are not easily controlled, and thus humans have to exercise considerable skill and craft “to bring them to hand.” North American hunters understand this perfectly: they know that they must kill and possess game before meat, hide, or antlers becomes theirs.

Wildlife law must maintain a delicate balance–because the balance is contradictory, like a helicopter that flies–between the value of wildlife as ferae naturae when alive and as property when dead. When the balance shifts towards property, wild animals become victims of humans’ inability to discipline their use of wildlife. Wildlife law attempts to tell us that we can’t completely own or control wildlife, no matter how hard we try. Ultimately, wildlife law is, or should be, about controlling ourselves as well as establishing our rights to wildlife.

AT ITS simplest, wildlife law merely describes the property relationships among land, people, and wildlife (Naughton-Treves and Sanderson 1995). Like all law that deals with property, wildlife law attempts to reduce or eliminate uncertainties about who has a right to wildlife, when and how that right takes effect, and what restrictions and obligations go with that right.

In the United States and Canada, wildlife law says that the states and provinces have a “trust” responsibility to their citizens to protect and manage wildlife for common benefit as well as for future generations. While under Canadian law, provinces claim actual title to wildlife to accomplish their trust duty (Ryder and Boag 1981), American legal tradition assumes that, as Supreme Court Justice Oliver Wendall Holmes wrote in 1920: “Wild [animals] are not in the possession of anyone; and possession is the beginning of ownership” (State of Missouri v. Holland 1920: 384).

The fundamental contradiction of wildlife law–that we are trying to control the uncontrollable–stems from our heritage as an agricultural people who, unlike ancient hunters, purposefully and intensively manipulate the land over time to produce food and fiber for ourselves or others. As human population growth shows, we’ve been enormously successful at making the land produce more than it would naturally. Such high levels of production require detailed concepts and rules of property to sort out what belongs to whom.

When your perspective is wholly oriented on ownership, you become very aware of what you don’t, or can’t, own. To the property-minded, wildlife is a fugitive resource difficult to control without hard work and the certainty that hard work will pay off. These considerations lead to a kind of “cost-benefit analysis” that asks whether one’s time should be spent on more productive pursuits. From an agricultural perspective, hunting is in many ways a waste of valuable, productive time.[2]

Consequently, wildlife law is a very curious thing for a property-minded society. Agricultural societies and the law have generally considered hunting wild animals, or even roaming the woods looking for game, a non-productive and even anti-social activity, suspiciously akin to vagrancy or worse, such as poaching the king’s deer and maybe putting an arrow in a neighbor’s cow for good measure. Agricultural people have always had a deep suspicion of anything ferae naturae, because wild things produce nothing or little of value and often destroy things that do have value, such as crops, livestock, fences, or the labor of a fieldworker who sneaks off to hunt hares.[3] To hunt, or seek to learn the natural history of game, is to steal productive time.

Even the ancient Greek philosopher Socrates took this position, saying “I love to learn, and the trees and open fields have nothing to teach me, whereas men in the town do” (Plato, Phaedrus 230d). At a more practical level, the Greek legislator Solon forbade Athenians to hunt because he believed hunting interfered with productive, “mechanical” pursuits (Geer 1896: 602).

The Romans, although a more “mechanical” people than the Greeks, fortunately took a somewhat broader view of wild animals (lions and Christians notwithstanding). The Romans were apparently the first to recognize the fundamental contradiction in wildlife law. Their innovative solution to the dilemma of owning wildlife still guides wildlife law today.

Knowing that wild animals were wild by nature and could not be owned by anyone, the Romans treated wildlife as common property. They declared that ownership began only with actual capture and lasted for only as long as the animal were restrained (Bean 1983; Geer 1896). For example, if someone trapped a wild bird, but the bird later escaped, the trapper could not claim to own the bird. The bird, even while restrained, was still ferae naturae–as any falconer can tell you. The animal’s very life was its defense against ownership. This is why the death of a wild animal is so critical to making it property. Only death gives surety that the animal will stay put.[4]

IF THE Romans established the basic ideas and rules of Western wildlife law, North Americans owe their particular versions of the law to two historical events: the rise of English feudalism, with the royal privilege of the chase, and the shocking encounter with the New World, where not only were wild animals ferae naturae, but the entire continent.

English wildlife law arose from the Saxon and Norman invasions of 450 and 1066 AD. As in all conquests, to the victor goes the spoils, and the spoils were the English rivers, forests, and wildlife. The Saxon invaders started the practice of dividing among the nobility huge tracts of land and allocating to the king the “royal forests,” where only he had the right to hunt (Bean 1983: 10). After defeating Harold at the Battle of Hastings in 1066, William the Conqueror maximized the theft of English lands by destroying villages in and around the forests to clear them of human occupation.[5] Like the Saxons, he reserved to himself the sole right to hunt in the cleared royal forests, but he also reserved the right to allocate hunting privileges to the Norman nobility on the lands he granted them.

William’s decision to claim hunting as his own special right radically altered the old Roman notion that no one owned wildlife, whether on their own lands or on common lands and waters. By claiming the sole right to grant hunting privileges, William established a new category of property: sovereign ownership.[6] He took the English people’s common property in wild animals and declared wildlife to be the “property” of the king as the sovereign embodiment of the state, who could allocate hunting privileges as he saw fit–always to the non-productive nobility.[7]

Nevertheless, William’s claim of sovereign authority over wildlife has proven to be of enormous value to American wildlife law. Although William’s motive was calculated to help maintain Norman power, he unwittingly established an idea that matured in the 19th century.[8] That idea is that wildlife “belong” to a sovereign and free people and that a freely elected government, as the political embodiment of the people’s will, had a “trust” duty to conserve wildlife as a public good. By the 20th century, that public good had become not merely the legal conservation of wild animals, or even the privilege of hunting, but wildlife’s wildness itself.

What happened? How did the one quality of nature that a property-minded people so thoroughly distrusted and intended to eliminate through agricultural development and legal restrictions on non-productive pursuits come to have such independent value? I believe that the sheer size and scope of the North American wilderness and its wildlife, not to mention the encounter with what they believed to be “wild” men and women, or Native Americans, forced many Europeans to rethink who they were. The New World asked: “Might humans be inherently ferae naturae and thus outlaws like wildlife?” The eventual answer was for many “yes.”[9]

In the New World, attitudes toward wild things were taking a radical step back to the edge of the Paleolithic–the time of hunters when hunting was a pursuit both economic and spiritual–but only to the edge. Colonists were still agriculturists, but the New World make them acutely aware that there were severe limits to controlling and owning it all. They could own only what they could possess through the heavy expenditure of labor and learning. That meant a serious engagement with wilderness and wildlife; cultural changes that gave non-economic value to wildlife and wilderness were inevitable. Over time, people in America began to believe that they had a natural right as a free and sovereign people to hunt for whatever reason, despite centuries of cultural brainwashing that hunting was a privilege of the upper classes and the much older truth that no one owned or had any natural rights in wildlife.

By the late 19th century, hunting to put food on the table in America had become less important for most families with the massive expansion of food production. Commercial hunting for the market and agricultural clearing of wildlife habitat had in any case brought many game species to near extinction throughout the continent. When it suddenly became apparent that the vast American wilderness was truly finite and rapidly disappearing, the right to hunt–essentially, the right to be wild like those original outlaws wildlife–took a radical turn toward the cultural, ethical, and even spiritual to protect that right.[10]

In the 19th century, American popular culture had begun to glorify hunters, mountain men, backwoodsmen, and pathfinders such as Daniel Boone, Lewis and Clark, Davy Crockett, and Jim Bridger. James Fenimore Cooper’s “Leatherstocking Tales,” with the gentle backwoodsman Natty Bumpo, gave wild things and even people popular legitimacy. Landscape art, quite the rage in civilized Europe, lost its rural character and became quite wild and majestic in North America. John James Audubon’s widely distributed prints of American wildlife virtually created wildlife art. Other artists like George Catlin, James Moran, Alfred Bierstadt, Frederick Remington, and Carl Rungius flocked to the West to capture it on canvas before it disappeared. Visionaries like Henry David Thoreau and John Muir redefined wild things ferae naturae as good. And legally, the U. S. Supreme Court was working toward a theory of state responsibility to protect wildlife for the common good.[11]

The 19th century’s extreme cultural turbulence gave hunting, natural history, and bushcraft widespread moral legitimacy for perhaps the first time in Western history. Suddenly, being wild, if only for a time, was both good and a natural right. Unsurprisingly, it was American aristocrats like writer, rancher, hunter, soldier, and President of the United States Theodore Roosevelt and writer and businessman George Bird Grinnell, editor of the influential magazine Forest and Stream, who gave wildlife and wildness their ultimate cultural legitimacy. Unlike their European predecessors, however, Roosevelt, Grinnell, and like-minded gentlemen believed wild, deliberately unproductive pursuits should be the common rights of all. America was after all a democracy, where the people were sovereign. For the sovereign American people, wildlife and wilderness were becoming a public goods worthy of conservation and protection from private economic exploitation.

All this came together in what may be the most important wildlife law case in American legal history: the 1896 U.S. Supreme Court case Geer v. the State of Connecticut. The issue in the case was simple: could Edward Geer take wild woodcock, ruffed grouse, and quail, which he had legally killed in Connecticut, across state borders to sell in another state? Connecticut said no and convicted Geer for violating state game laws against exporting game for commercial use.[12] Challenging his conviction, Geer claimed that Connecticut had unfairly limited interstate commerce in legally harvested game, thus violating the Interstate Commerce clause of the American Constitution. Furthermore, under the common law, wasn’t dead game legally his own to do with as he wished?

No, said the Supreme Court, and wildlife conservation became a reality in the United States. The Court adapted for American needs public trust law, which normally concerns the right of public access to water resources, and William the Conqueror’s claim to own wildlife in his capacity as sovereign and not as a private person. The Court thus ruled that Connecticut, as the political embodiment of its sovereign people, could claim to own wildlife, “so far as it is capable of ownership,” to protect and conserve wildlife for the benefit of the state’s citizens–the actual “owners” of the state’s game.

Geer is remarkable not only because it blessed the old Roman legal fiction that wildlife ferae naturae can be considered common property in the law, but also because it recognized inherent limitations to private ownership of, and commerce in, wildlife once captured and killed. The Court reasoned that since wildlife was the common property of Connecticut’s people as far as the law was concerned, that “common ownership [implies] the right to keep the property, if the sovereign so chooses” (Geer 1896: 605). In other words, the people of Connecticut, through their legislature, could prohibit Geer from making commercial use of the wild game he had legally killed. The people of Connecticut’s sovereign right to conserve their wildlife as a special type of common property trumped Geer’s private property rights in that wildlife.

Geer and its theory that states could claim to own wildlife as sovereign property made it legally possible for states to prohibit commerce in wild game.[13] Shutting down wildlife markets in the early 20th century was the most important event in the history of wildlife conservation law. Within a generation, conservationists created the profession of wildlife management and state wildlife commissions and departments that would scientifically manage wildlife as a public trust for the common good, not private benefit. Without Geer, it is unlikely conservation in the 20th century would have taken hold.

DESPITE RADICAL changes in American culture and law, our thoroughly agricultural attitudes to this day still reflect a longing to control wildlife for human benefit the way we believe we can control land, minerals, timber, or even domestic animals. Western history so far has shown this to be a justifiably unrequited longing. There is an inherent contradiction in applying law to wildlife: wildlife is ferae naturae; wild animals are uncontrollable–are wild–and thus can be controlled only by killing them. Killing to create property has serious cultural consequences that the law must address.

It has been the genius of American wildlife conservation in the 20th century, and its embodiment in wildlife law, that it has taken this contradiction and made it a positive thing by creating for human beings the cultural right–not a property right–to briefly become wild themselves through quixotic encounters with wildlife and wilderness ferae naturae. That cultural right to wildness automatically entails cultural obligations–another unavoidable aspect of the contradiction. But as long as the contradiction remains in place, we’ll always have some pleasure in wild things.

References

Bean, M. J 1983. The evolution of national wildlife life law. New York: Praeger.

Clajon Production Corporation et al. v. Petera, United States District Court for Wyoming 93-CV-0223-B (1993), and Clajon Production Corporation v. Petera 70 F.3d 1566 (10^th Cir. 1995).

Douglas v. Seacoast Products, Inc. 431 U.S. 265.

Geer v. State of Connecticut 161 U.S. 519 (U.S. Supreme Court, 1896).

Hughes v. Oklahoma 441 U.S. 323 (U.S. Supreme Court, 1979).

Naugton-Treves, L. and S. Sanderson. Property, politics, and wildlife conservation. World Development 23(8): 1265-1275.

Plato. 1973. Collected Dialogues. Princeton, NJ: Princeton University Press.

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[Sidebar—Pre-Geer Cases:)

1. Martin v. Waddell (1842). A landowner on the Raritan River in New Jersey attempted to prevent the public from collecting oysters from the river’s mudflats, claiming that he exclusively owned the mudflats and could therefore exclude the public, based on the original land grant from English king Charles II to the Duke of York. The Supreme Court ruled that the people’s common right of fishing along navigable waters was a part of the original land grant and that this common right to fish or collect oysters was a background restriction on Martin’s title to the land. Therefore, Martin could not exclude the public from his property.

2. Smith v. Maryland (1855). Smith, who held a commercial coastal trading license from the United States government, challenged Maryland’s regulation of his commercial take of oysters as a violation of the U.S. Constitution’s Interstate Commerce clause. The Supreme Court ruled that Maryland, because it owned the “soil” from which Smith had taken the oysters, could regulate commercial fishing without interfering with interstate commerce.

3. McReady v. Virginia (1876). McReady challenged a Virginia statute that prohibited non-residents from “planting” oysters in Virginia state waters. The Supreme Court ruled that because Virginia “owned not only the tidewaters, but the fish in them, so far as they are capable of ownership while running,” the state could prevent non-residents from planting or taking oysters in order to protect the common property of Virginia’s citizens.

[Sidebar: Important Post-Geer cases:]

1. Missouri v. Holland (1920). This was the first major case to put a dent in Geer’s proclamation of the “state ownership of wildlife” theory. To uphold the Migratory Bird Treat Act, passed to implement the treaty with Great Britain of the same name, the Supreme Court ruled that Congress, under authority of the Treaty clause of the Constitution, could pass federal wildlife conservation legislation over the objections of the states. Missouri had protested the Act as an infringement on state authority for wildlife and tried to prevent it from being enforced in Missouri.

2. Hunt v. United States (1928). To protect areas of the Kaibab National Forest and Grand Canyon National Game Preserve from severe deer overbrowsing, the U. S. Forest Service killed thousands of deer. The state of Arizona, claiming to own the deer and that killing them violated Arizona game laws, tried to prevent the kill and arrested 3 federal agents. The Supreme Court upheld a lower court’s order to Arizona not to interfere with the deer kill, reasoning that “the power of the United States to … protect its lands and property does not admit of doubt … the game laws or any other statute of the state to the contrary notwithstanding.”

3. Kleppe v. New Mexico (1976). In a challenge to the federal Wild Free-Roaming Horses and Burros Act, the New Mexico Livestock Board captured, at the request of a federal grazing lease holder, 19 burros on BLM land and sold them. The Secretary of the Interior sued for the burros’ recovery. A lower court upheld New Mexico’s action and declared the Act an unconstitutional infringement on state authority for wild animals. The Supreme Court disagreed with the lower court, noting that Congress had declared wild horses and burros to be “integral parts of the public lands,” which were clearly federal property. The United States had thus expressed a property interest in wild, free-roaming horses and burros on the public lands that trumped the state’s claim to own them. Therefore, New Mexico’s capture and sale of them was illegal.

4. Baldwin v. Montana (1978). Baldwin, a Montana big-game outfitter, claimed that Montana’s non-resident license fees–which were 7 1/2 times higher than resident fees–discriminated against non-resident hunters, violating both the Privileges and Immunities clause of the U. S. Constitution and the Equal Protection clause of the 14th Amendment. The Supreme Court ruled that Montana could use a variety of means to limit hunter access to big-game animals, and that requiring non-residents to pay higher license fees was a legitimate tool to achieve that conservation goal. The court also ruled that recreational hunting was not a fundamental right protected by the U. S. Constitution.

5. Clajon Production Corporation et al. v. Petera et al. (1994, 1995). This truly important case directly challenged Wyoming’s claim to “own” wildlife for the benefit of Wyoming’s citizens and Wyoming’s system of allocating big-game licenses. The Clajon plaintiffs claimed that “by virtue of their ownership of the land, [they] own the exclusive right to hunt the elk, deer, and other game, on their own lands, and to determine those persons who may enter and hunt upon their lands.” These claims were based on old English feudal laws that restricted hunting to the aristocracy. The Clajon plaintiffs further claimed that Wyoming had unconstitutionally “taken” their private, exclusive property rights to hunt and determine who hunts on their land through its license allocation regulations. In particular, they claimed that limiting landowner and non-resident licenses, and prohibiting landowners from independently selling hunting rights, primarily to non-residents who would be willing to purchase them at high prices, violated landowners’ “civil and constitutional rights.” To resolve their claim, the plaintiffs demanded the courts declare Wyoming’s wildlife management system unconstitutional, which in effect would have given the plaintiffs and other large landowners complete control over big-game on or migrating through their property. However, both Wyoming’s Federal District Court (Cheyenne) and the 10th Circuit Court of Appeals ruled Clajon’s claims had no merit. Since then, Clajon has sold its vast holdings in Shirley Basin southwest of Casper.