Well, to the extent that a living being can "belong" to anyone, the answer is...you. Actually, you and me. Wildlife is held in trust by the state for the benefit of the public. This concept is called "The Public Trust Doctrine" and it applies to wildlife law in very much the same way it is commonly understood. Assets (wildlife), are held by an entity (governmental agency, often the state), for the benefit of a third party (the public).
Historically in Europe, wild animals were believed to be owned by the king for the use and enjoyment of the aristocracy. But during colonial times, Americans rebelled against this class-based theory and instead adopted the concept that wildlife is for the benefit of all people. American wildlife law has developed around this notion that wildlife is a public resource, much the same as any other natural resource and should be managed for the common good.
However, early in American history with virtually unrestricted access to "game" (i.e. hunted wildlife, typically deer and fowl), animals were killed for sport or profit on a year round basis presenting the potential for total annihilation. Fearing the supply of animals would eventually disappear, a movement began in the late 19th century to develop conservation laws to protect animals from over hunting.
Battles ensued between those who wanted unrestricted use and enjoyment of wild animals and those who wanted limits placed on these activities. The court cases from this era made it clear that a fundamental principle is that wild animals are the common property of the people and reasonable restrictions and limitations can be placed on their destruction. In 1896 the Supreme Court stated that "...the fundamental principles upon which the common property in game rests have undergone no change...the power or control lodged in the State, resulting from this common ownership, is to be exercised...as a trust for the benefit of the people, and not as a prerogative for the advantage of the government...or for the benefit of private individuals as distinguished from the public good." (Geer v. Connecticut, 161 U.S. 519 (1896)).
After these initial court cases, a series of conservation laws were enacted leading to today's current set of laws. State legislatures created state wildlife agencies and gave them responsibility for overseeing and enforcing wildlife laws. These wildlife agencies are typically divisions within larger state environmental protection or natural resource agencies and are responsible for, among other things, the days hunting seasons open and close, what types of weapons can be used, and the number of animals which may be killed.
But herein lies the rub: in order to insure a reliable funding source, the framers of the state wildlife agency system provided for permanent funding from hunting license fees and revenue generated from gun and ammunition sales (see prior blog posts: "The Structure of our State Wildlife Agency System" 9/25/09 and "The Federal Gun Tax" 12/09/09). Since conservation laws were developed at a time when preventing uncontrolled hunting was the objective, this financial arrangement made sense. Conservation laws were developed to protect the supply of game animals for hunting. Little attention was given to the notion that animals have intrinsic worth, are essential to bio-diversity or that game and non-game animals alike are needed for a balanced ecosystem. Yet there is no other state agency empowered to protect wildlife. "Conservation" is a misnomer in today's wildlife agency system. The mandate to safeguard our wildlife for the public at large is a virtual impossibility when a majority of funding for this purpose is derived from hunting licenses and gun sales.
A rash of state constitutional amendments have recently passed seeking to protect the right to hunt as a constitutional entitlement. These NRA backed amendments currently exist in 13 states and appear to be in response to a perceived threat which may have its roots in The Public Trust Doctrine. As the doctrine becomes better known and understood, the fear may be that emphasis will turn toward the protection of wildlife for the benefit of the environment and the public as a whole, and away from its use by the 4% of the population who hunt.
Interestingly, the leading organization of wildlife professionals, The Wildlife Society, has recently confirmed that The Public Trust Doctrine forms the basis of our wildlife law. In one of its recent publications, they say "The Public Trust Doctrine...is an essential element of North American wildlife law. The Doctrine establishes a trustee relationship of government to hold and manage wildlife...for the benefit of the resources and the public." (The Public Trust Doctrine, Implications for Wildlife Management and Conservation in the United States and Canada, Technical Review 10-01, Sept. 2010). However, the Society goes on to express concern about potential threats to the strength of the doctrine by saying "The underpinnings of the [doctrine]and [it's] future relevance and successful application...may be at risk due to recent changes in society, government policies, and case law." The threats to The Public Trust Doctrine the Society lists however, sound a lot like perceived threats to the future of hunting; the threats they point to are "...inappropriately claiming ownership of wildlife as private property; unregulated commercial sale of live wildlife; prohibitions on access to and use of wildlife; personal liability issues; and a value system oriented toward animal rights.." (emphasis added). I don't know, but the last time I looked, people supportive of animal rights were considered part of our society.
Prior Blog Posts:
The Structure of our State Wildlife Agency System
9/25/09
Teaching Children to Kill
10/02/09
The Supreme Court and the Culpability of a Child
11/18/09
The Federal Gun Tax
12/09/09
Lead Ammunition
1/14/10
Connecting the Dots of Violence
2/01/10
Man as "Super-Predator"
3/17/10
U.S. v Stevens: What interests are being protected?
4/27/10
Predation Control: to what end?
9/14/10
The Paradox of Killing Wildlife as Population Control
10/24/10
