Here, all you people who keep repeating by rote "the state owns the game", argue with this Supreme Court decision: (NOTE THE LAST LINE, "the 19th century legal fiction of state ownership".)This is not my opinion, this is the Supreme Court of the United States. So argue with them.

Hughes v. Oklahoma -
The Demise of the
"StateOwnership" Argument

The case of Hughes v. Oklahoma, 441 U.S. 322 (1979,) was the demise of the "State-ownership" argument that had been embodied in Geer v Connecticut, 161 U.S. 519. The court held that:

"The Geer decision rested on the holding that no interstate commerce was involved, because the State had the power, as representative for its citizens, who "owned" in common all wild animals within the State, to control the "ownership" of game that had been lawfully reduced to possession, and had exercised its power by prohibiting its removal from the State.

"(a) Geer v. Connecticut, supra, is overruled. Time has revealed the error of the result reached in Geer through its application of the 19th century legal fiction of state ownership of wild animals. Challenges under the Commerce Clause to state regulations of wild animals should be considered according to the same general rule applied to state regulations of other natural resources. Pp. 326-335.

"(d) States may promote the legitimate purpose of protecting and conserving wild animal life within their borders only in ways consistent with the basic principle that the pertinent economic unit is the Nation; and when a wild animal becomes an article of commerce, its use cannot be limited to the citizens of one State to the exclusion of citizens of another State. Pp. 338-339."

Justice Brennan for the Court stated:

"The United States Supreme Court has held on numerous occasions that the wild animals and fish within a state's border are, so far as capable of ownership, owned by the state in its sovereign capacity for the common benefit of all its people. Because of such ownership, and in the exercise of its police power, the state may regulate and control the taking, subsequent use and property rights that may be acquired therein. Lacoste v. Department of Conservation, 263 U.S. 545 . . .; Geer v. State of Connecticut, 161 U.S. 519 . . . . As stated in Lacoste, supra, protection of the wildlife of a state is peculiarly within the police power of the state, and the state has great latitude in determining what means are appropriate for its protection."

..."Geer sustained against a Commerce Clause challenge a statute forbidding the transportation beyond the State of game birds that had been lawfully killed within the State. The decision rested on the holding that no interstate commerce was involved. This conclusion followed in turn from the view that the State had the power, as representative for its citizens, who "owned" in common all wild animals within the State, to control not only the taking of game but also the ownership of game that had been lawfully reduced to possession. By virtue of this power, Connecticut could qualify the ownership of wild game taken within the State by, for example, prohibiting its removal from the State: "The common ownership imports the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose." 161 U.S., at 530. Accordingly, the State's power to qualify ownership raised serious doubts whether the sale or exchange of wild game constituted "commerce" at all; in any event the Court held that the qualification imposed by the challenged statute removed any transactions involving wild game killed in Connecticut from interstate commerce."

..."Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928), undermined Geer even more directly. A Louisiana statute forbade the transportation beyond the State of shrimp taken in Louisiana waters until the heads and shells had been removed. The statute clearly relied on the Geer state-control-of-ownership rationale. Anyone lawfully taking shrimp from Louisiana waters was granted "a qualified interest which may be sold within the State." Only after the head and shell had been removed within the State did the taker or possessor acquire "title and the right to sell and ship the same `beyond the limit[s] of the State, without restriction or reservation.'" 278 U.S., at 8.

"Ignoring the niceties of "title" to the shrimp and concentrating instead on the purposes and effects of the statute, Foster-Fountain Packing struck down the statute as economic protectionism abhorrent to the Commerce Clause...."

..."Foster-Fountain Packing's implicit shift away from Geer's formalistic "ownership" analysis became explicit in Toomer v. Witsell, 334 U.S. 385, 402 (1948), which struck down as violations of the Commerce Clause and the Privileges and Immunities Clause certain South Carolina laws discriminating against out-of-state commercial fishermen:

"The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource. And there is no necessary conflict between that vital policy consideration and the constitutional command that the State exercise that power, like its other powers, so as not to discriminate without reason against citizens of other States."

"Although stated in reference to the Privileges and Immunities Clause challenge, this reasoning is equally applicable to the Commerce Clause challenge. Douglas v. Seacoast Products, Inc., 431 U.S. 265 (1977), dispelled any doubts on that score. In rejecting the argument that Virginia's "ownership" of fish swimming in its territorial waters empowered the State to forbid fishing by federally licensed ships owned by nonresidents while permitting residents to fish, Seacoast Products explicitly embraced the analysis of the Geer dissenters:

"A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of `owning' wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture. . . . Geer v. Connecticut, 161 U.S. 519, 539-540 (1896) (Field, J., dissenting). The `ownership' language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing `the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.' [Citing Toomer.] Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution." 431 U.S., at 284.

"The case before us is the first in modern times to present facts essentially on all fours with Geer. We now conclude that challenges under the Commerce Clause to state regulations of wild animals should be considered according to the same general rule applied to state regulations of other natural resources, and therefore expressly overrule Geer. We thus bring our analytical framework into conformity with practical realities. Overruling Geer also eliminates the anomaly, created by the decisions distinguishing Geer, that statutes imposing the most extreme burdens on the interstate commerce (essentially total embargoes) were the most immune from challenge. At the same time, the general rule we adopt in this case makes ample allowance for preserving, in ways not inconsistent with the Commerce Clause, the legitimate state concerns for conservation and protection of wild animals underlying the 19th-century legal fiction of state ownership."

"A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of `owning' wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture"

That makes it real clear, all you have to do is erect the 8ft, 6inch fence, and that corrals them, but on a huge piece of property, you still havent captured them, or have you?

What it tells me is I am sure glad I hunt in the Western states where we have to purchase a tag and then go try and "capture" our game the old fashioned way, by hunting it, not corraling it.

Supposedly game belongs to all of us,and in order to watch out for the publics wildlife,game departments were established to manage and protect that wildlife or so the bullshit story goes. This goes back to england with the wealthy owning all of the wildlife. No one person owns the wildlife in america,rather the entire public owns it.

I don't know about texas and could care less,but in most states like wyoming,montana,idaho,New Mexico and on and on,unless you have a game farm license,all native species belong to the state. A ranch near me is a game farm(25,000 acres worth). This ranch can hunt elk and buffalo year round,because buffalo and elk weren't present in the high fence enclosure,but instead were bought at auction. Deer and antelope,weren't introduced to the property by auction and by law can't be,as a result deer and antelope can't be hunted year round,but only during state sanctioned seasons.

A prime example of states owning wildlife,is the chama land and cattle company in new mexico. You had this ranch claiming that the elk within the borders of the ranch were auction elk,it turned out they were opening gates and running wild elk into the ranch( elk that belong to the state). Needless to say chama got in trouble.

So in texas,can any ranch hunt deer year round,like exotics,or does it have to be a ranch that classified as a high fence game farm,with auction type deer in it?

RMK, Mickey:

Can you guys read? Read the above post. This is a Supreme Court of the US decision which makes it THE LAW OF THE LAND. Now, keep repeating, "the state owns the game, the state owns the game, ad infinitum" and you will still be just as wrong.

First off gordo,all you've got is selected excerpts from case law. Hell you can find the shit you've listed in any special intrest groups propaganda,taken out of context. You've proven nothing. What you're trying to push,is on par with groups that believe they don't need drivers licenses,the sheriff is the only law enforcement officer they have to abide by,you can still get land patents that make you exempt of taxes,yada yada yada. They even had a shoot out with a guy like this up in north dakota.

With as old as the cases you've listed are,how many have been reversed or over ruled? If what you've said is true,then you wouldn't need a license on private property to hunt,yet you do.

RMK:

quote:

---

With as old as the cases you've listed are,how many have been reversed or over ruled? If what you've said is true,then you wouldn't need a license on private property to hunt,yet you do.

---

It is not what I said, it is what the Supreme Court said. The case quoted above is 1979, (I repeat, try reading it helps to reinforce your points and you won't make such ignorant statements), which by Supreme Court standards is quite recent. They don't have a ruling on any given issue every year. For instance, without looking it up, the most recent SCOTUS ruling involving the Second Amendment is in the 30s, IIRC. Since you are so informed on case law and the way the system works, why don't you find a more recent ruling of the Supreme Court that addresses the issue and backs up your position of state ownership of game? You won't, unless the case in Ca (9th circuit ?) regarding the treatment of non-resident vs resident hunters makes it, which is unlikely since basically all they did was repeat the above rulings. And, even if it did, it negates the state ownership argument just as the Hughes v. Ok does. The string of rulings (cases) leading to Hughes vs Oklahoma goes back to 1842 just in the US and before that is found in the basis of the feudal code and systems of Europe, and likely Rome, as far as I know without doing some serious research.

IF you had read the above, you would know why we need a hunting license. If you had skimmed it and read the last sentence you'd know a) the basis for the reasoning why the states can require a hunting license and b) that they don't own the game. I'll repeat the last sentence by Justice Brennan (Supreme Court Justice 1956-1990)in his ruling for the court in hopes that it will clarify it for you. Beyond that, you'll have to do your own research. Prove me wrong with facts, not pointless ranting.

quote:

---

At the same time, the general rule we adopt in this case makes ample allowance for preserving, in ways not inconsistent with the Commerce Clause, the legitimate state concerns for conservation and protection of wild animals underlying the 19th-century legal fiction of state ownership."

---

I'm so glad I don't live in Texas...nor do I envision going there to hunt anytime soon.

This is some ugly form of economic microcosm studying the affects of a large per capita hunting population in a state with nothing but private land and a penchant for turning a buck...not that there's anything wrong with that, I just won't live there nor support the scenario.

Just a view from afar.

Reed

Ok just got off the phone to the TX parks and wildlife and I ask them flat out Gatogordo. Does the landowner/rancher own the wildlife that is on his or her land and the ANSWER IS NO! I repeat NO! the landowner/rancher DOES NOT OWN TX wlidlife!! Unless the wildlife has been paid for then it is no longer "wild life but stock." Here the phone # to the TX parks and wildlife for anyone ( "hint" Gatogordo ) who wants to give them a call. 1-(512)389-4800 ask for the wildlife dept.
Cheers.

[ 07-03-2003, 17:46: Message edited by: Paleohunter ]

As a lawyer who lives in New York, hunts primarily on public land in New York and elsewhere in the northeast, but has spent a bit of time hunting on private land in Texas as well, I've been following this thread and the "Corporations" thread with a bit of interest. For what they may be worth, here are my thoughts.

As to the ownership of game, the issue revolves around what is known as the "public trust" doctrine. Essentially, game (and I'm using "game" here in the broadest sense, including fish, non-game animals, etc.) is owned by the citizens of the state, and is "held in trust" for them by the state, which is entitled to exercise its police power to manage that game in what, in the reasonable exercise of its discretion, is in the best interests of all its citizens. For the most part, that gives the state wide latitude in setting regulations, enacting laws, etc. regarding the taking of game. However, their power is not absolute, since all state actions must bow to the overriding authority of the US Constitution.

The Constitution, among other things, prevents states from placing unreasonable burdens on interstate commerce, and gives Congress the right to regulate interstate commerce.

The case that Gatorgordo cites addresses what happens when a state's exercise of its police powers over game results in a burden being placed on interstate commerce. He does not relate the facts that gave rise to the case (and, in law, the facts are of vital importance, since they are the skeleton over which the body of the law is laid), but if it's the one I believe it is, the issue was whether Oklahoma could prevent the capture of shiners in state waters, which would then be shipped out of state for sale as bait. The key issue here was the interstate shipment. The court found that the shipment of shiners out of state constituted interstate commerce, and that the Oklahoma law prohibiting interstate shipment was an unreasonable burden on such commerce, and thus unconstitutional.

Note that while the court found that the state did not own the shiners in a manner that would have permitted them to dispose of them in any manner it chose--including prohibiting their shipment out of state--it did not find that the state could not engage in the reasonable exercise of its police power with regard to those shiners. If, for example, they determined that the shiners should not be caught at all, by anyone, for any purpose, it is likely that no court would have disturbed such action.

Therefore, Texas does have the right to exercise its police power over deer and other wildlife on private ranches, even though they don't own them. However, the ranchers don't own the deer either, except to the extent that they are part of the body of citizens for which the deer are held "in trust" by the state. As somebody mentioned earlier, though, the ranchers do own "the dirt" on which the deer stands. More (mineral rights issues excepted), under the common law, a landowner not only owns the mere surface of the land, but all the area below and above it, "from the vault of the earth to the ceil of the heavens." Clearly, this concept was devised when folks thought the earth was still flat and before anyone conceived of planes or satellites. Still, it provides a legal basis for the trespass prosecution someone mentioned earlier, when they stated that if you shot a deer just on the "wrong" side of the fence, and pulled it over onto your side without ever setting foot off your own soil, you would still run afoul of the law. You technically trespassed when any part of your body (or, in fact, your bullet) violated your neighbor's airspace. (Yes, I know this starts getting ridiculous, but please don't blame the messenger.)

Now for the core question. Is high-fencing--or charging high lease fees--"right."

Although I have mixed emotions, I think in the end I have to side with the landowner, and just hope that he's a decent soul who doesn't try squeeze the last drop of blood from a stone. Here's why.

As I said, I don't live in Texas, but I have some friends down there and have hunted as a guest of the owners on four different ranches (one high-fenced) and three leases (although one of those was a small lease for the sole purpose of pass-shooting doves). I could contrast my exeriences there with those on northeastern public land; I could also contrast the costs (as reported by friends with the leases, and also as cited on this board) with other outdoor recreation--most particularly salt water fishing, which I have done for years.

On balance, I think that the Texas lease arrangement comes out looking good.

On the high-fence ranch, the deer were carefully managed, with only those animals meeting certain high standards killed (or those meeting low standards culled). Each deer killed was aged, and that knowledge turned back into improving the herd. Only the rancher's family and guests hunted the land. In truth, it reminded me more of a cattle-farming operation than hunting wild deer, and it wasn't my kind of whitetail hunting. There was plenty of other game--javelina, hogs, squirrels, coyote, a bobcat, turkeys--and I concentrated on them. But the deer were magnificent, and I didn't have to worry about competition from hordes of hunters. That last fact was the most attractive.

On the other ranches and leases, the deer were more natural and not "genetically engineered," but they were still held to high standards (the last was 8 points and at least a 15-inch inside spread) before being "shootable", so I saw a lot more decent animals than I would in the Catskills, where anything spikes or better is meat, even though they suffered a lot of attrition when they wandered off the property. Certainly, the hunting experience was far better on the low-fence ranches than on eastern public land (and I'm including here even places like the Adirondaks and Maine, where hunters are not as concentrated, but still include a significant percentage of thoughtless or dangerous individuals).

Cost? Is $2,000-$5,000 per person too much to pay for hunting on land that will be exclusively used by members of your party? I don't think so. Again, using the fishing example, I had a 25-foot outboard that cost me about $1,000/year to insure, $1,750 to dock, $500 for winter storage, maybe another $500-$750 for maintenance related to winterizing and launching--and that doesn't include fuel, routine maintenance, etc., which was not cheap, or begin to contemplate the cost of the boat itself. If an angler can pay that every year--and those are pretty typical numbers here on Long Island for "ordinary" folks, blue collar or white, and we most certainly don't have exclusive use of the waters--paying the same amount for a lease doesn't sound that bad.

Does it keep some people from hunting? Maybe, and if it does, that's bad. But the crowded public lands turn folks off, too, because when the stray shots come too close, too often, it just isn't fun anymore. As badly as I want to go, I won't hunt turkey on public land, because too may idiots blast away at the "gobble" instead of the gobbler (I met a guy up in the Adirondaks a couple of years ago who lost an eye after being shot for a turkey at the edge of a southern NY field, where the vegetation was only 18" high!)

Should people charge what they do for leases? I guess that's a personal call. If you're the sort of person who will sell a used car or truck for less than it's worth because people need it to get around, or if you own a business and charge less than your competitiors just to help folks out, or if you're a tradesman who charges less for your work because people need plumbing or carpentry or electrical work, and houses shouldn't cost as much to keep up as they do, then maybe hunting leases should cost less--at least for you. On the other hand, if you like to sell near the top, you shouldn't expect a rancher to do any less.

Sorry for the length, but this is an interesting topic, and I wanted to get it all in one post.

"Should people charge what they do for leases? I guess that's a personal call. If you're the sort of person who will sell a used car or truck for less than it's worth because people need it to get around, or if you own a business and charge less than your competitiors just to help folks out, or if you're a tradesman who charges less for your work because people need plumbing or carpentry or electrical work, and houses shouldn't cost as much to keep up as they do, then maybe hunting leases should cost less--at least for you. On the other hand, if you like to sell near the top, you shouldn't expect a rancher to do any less."

Whiteeagle I was not; or hope it was not taken that I meant for a landowner/rancher should sell or lease for less (although he is truly a moral soul if he does) but that price gauging just for the hell of it is just morally wrong and should be outlawed IMHO. Owners of gas stations got their tit in a ringer for gauging gas prices on and after 9/11, because is price gauging not illegal?? What would you do if all the docks in your area or all along the East Coast decided to charge say 5,000, 8,000, 10,000 to dock your boat just because "the market can bear it, thats what people will pay, the person can because he owns the dock and he can the other owener can do what ever the hell they want."

"You technically trespassed when any part of your body (or, in fact, your bullet) violated your neighbor's airspace"

Whoa man I have I ever trespassed alot

Whiteeagle:

Your "public trust" analysis relates more to fish than land based game and is not a completely accurate description, but in general, for all practical purposes, it is correct, as is the rest of your post. Thanks for a breath of fresh air.

I didn't post the facts of Hughes v. Ok because if they won't or can't read a one page summary, then why would they read a whole case? The facts of any one case obviously affect the end result, but the rulings, in effect, become law, negate prior laws, and interpret how laws can be written or enforced in the future to avoid the problems presented by whatever the case in front of the court involves, and I refer you to the last sentence again, which says quite clearly that the state ownership of game is legal fiction. A phrase used much earlier by another justice (1948, I believe) and repeated by Brennan here.

So, as I said, many long posts ago, we come back to my original post, the state (any state) DOES NOT OWN THE GAME and exercises its police powers as a public trustee and to manage the resource. As you are aware, where the SC got involved in almost all of the few dozen case that address this issue was when the various states overstepped their "rights", usually giving some kind of preferential treatment, often economically based, to their citizens. Of course, when and if such law wended its way to the SC, then essentially the equal treatment clauses, or ICC, of the Constitution voided them.

Paleohunter:

Call the TP&W all you want, have you ever heard of the old saying, "the blind leading the blind".
Show the Hughes v. Ok and ask them their response. All I have ever said is that the state does not own the game, and it doesn't, period. Never has. Or at least hasn't under modern interpretations of the law, as well as going back to the Roman "imperium", which the states do have over game, vs. "dominium", which they don't.

I never said that the land owner owns the game, but he can fence it in and deny other "trustees" the right to access it for harvest. These are fine points, which I have tried to repeat in understandable language, but which you seem incapable of grasping, and, just as in the powers of game wardens, it is not in the best interests of TP&W to accurately state the facts, if they even know them, which is doubtful on any level that you would talk to. However, just as in "the right to tax is the right to destroy" the reality is that, while the state does not own the game (get it yet?) the right to control its use is "de facto" nearly the same thing.

Paleohunter:

"Call the TP&W all you want, have you ever heard of the old saying, "the blind leading the blind".
Show the Hughes v. Ok and ask them their response. All I have ever said is that the state does not own the game, and it doesn't, period. Never has. Or at least hasn't under modern interpretations of the law, as well as going back to the Roman "imperium", which the states do have over game, vs. "dominium", which they don't.

I never said that the land owner owns the game, but he can fence it in and deny other "trustees" the right to access it for harvest. These are fine points, which I have tried to repeat in understandable language, but which you seem incapable of grasping, and, just as in the powers of game wardens, it is not in the best interests of TP&W to accurately state the facts, if they even know them, which is doubtful on any level that you would talk to. However, just as in "the right to tax is the right to destroy" the reality is that, while the state does not own the game (get it yet?) the right to control its use is "de facto" nearly the same thing."

"(get it yet)" No.

Is it not aginst the law to make false allegations? If what the parks and wildlife say is false, can they not then be sued? So "if" I own say a 1,000 acers in TX and I put a fence around that means that I own the deer and every other wild native creature on it? I can hunt them when I want? If I have cattle on it I can hunt them if I want? If I have Bison on it I can hunt them if I want? If I have deer on them can I not also hunt them if I want? I own them right?

"I never said that the land owner owns the game,but here can fence it in and deny other "trustees" the right to access it for harvest."

Then who does own the game? If its the trustees "us" then do we not have the right to do with it as we please? If we the "trustees" cannot do with it as we please then do we really own it?

Mickey1:

I am posting this Houston Chronicle article for you to understand my references to Texas Game Wardens, and the widely believed myths that surround their powers. Since these myths about their powers are not restricted to Texas, I am posting this here for general information purpose as well. Article follows:

Proposed bill would give game wardens more flexibility with inspections

By SHANNON TOMPKINS

Copyright 2003 Houston Chronicle March 5, 2003

FEW Texas outdoors myths are as widespread or persistent as those surrounding the authority of state game wardens.

Texas Parks and Wildlife Department game wardens, most people will tell you, don't need search warrants or even suspicion to check for illegally taken game or fish.

Some will swear game wardens can even enter homes without the probable cause, exigent circumstances or court-issued search warrants necessary of other law enforcement officers.

Wardens, they'll vow, can randomly approach anyone hunting or fishing and poke through game bags and live wells, vehicles and ice chests and check any game or fish in a person's possession.

As with most myths, this one is based on a foundation holding chunks of truth and bits of the imagined and feigned.

But a bill introduced into the Texas Legislature this week could give TPWD game wardens some of the authority most Texans are convinced they already possess.

House Bill 1529 by Rep. Robert Cook, D-Eagle Lake, would give TPWD game wardens authority to mandate that hunters and anglers allow wardens to randomly inspect hunting and fishing equipment, inspect any fish or game or other wildlife resources folks possess and check the contents of containers such as ice chests and boat live wells.

Despite long-held belief of most Texans, TPWD game wardens do not currently have the authority to conduct those searches without either first having probable cause or the consent of the person being checked.

For decades, game wardens have depended greatly upon the myth to help them do their jobs. When a warden approaches an angler or hunter and asks to check an ice chest or inspect a firearm, the person acquiesces, believing the law requires it.

But over the past few years, increasing numbers of people have learned Texas law does not require them to submit to random inspection of live wells or game bags or even their firearms.

This could have a serious impact on wardens ability to protect the state's natural resources, said Rep. Cook and TPWD law enforcement officials.

"It's beginning to show up mostly in East Texas, but I think it's just a matter of time before it spreads across the state," Col. Jim Stinebaugh, director of TPWD's law enforcement division, said of challenges to wardens' requests to check for law violations.

Wardens investigating suspected cases of running deer with dogs have been the most likely to be challenged to show probable cause, Stinebaugh said. That is hampering their ability to do their jobs, he said.

Current Texas statutes give Texas game wardens considerable authority to check hunters, anglers, boaters and others involved in outdoor recreation.

The 1975 Texas Water Safety Act specifically allows a warden to "stop and board any vessel ... and may inspect the boat to determine compliance with applicable provisions."

The statute requires boaters have certain safety equipment (life jackets, fire extinguishers, etc.) and the operator hold a state-issued Certificate of Number for a Boat.

The law requires the boat operator "show the certificate to the officer on demand, and failure to do so constitutes a violation."

It also says, "No person operating a boat on the water of this state may refuse to obey the directions of an enforcement officer when the officer is acting under the provisions of this chapter."

Wardens also have authority, specifically given them in statute, to require hunters and anglers show their licenses, and special-use stamps.

Texas law also gives TPWD law enforcement officers authority to conduct random checks of commercial fishers and department-licensed businesses dealing in aquatic products.

But the statutes are silent about warden's authority to check equipment used by hunters and recreational anglers.

Also, Texas game wardens have no authority to conduct random searches of live wells, ice chests, vehicles game bags or require a hunter or angler allow the warden to inspect their equipment.

Current Texas statute says:

"A game warden ... may search a game bag, vehicle, vessel, or other receptacle if the game warden ... has a reasonable, articulable suspicion that the game bag, vehicle, vessel, or receptacle contains a wildlife resource that has been unlawfully killed or taken."

This means a warden who is walking along the jetties and sees a 12-inch speckled trout on a stringer next to an angler has a reasonable suspicion that fish is illegal. The minimum length for specks is 15 inches. The warden has authority to check the fish and angler.

If that same angler has the 12-inch trout in an ice chest, and the warden didn't see the angler catch and box it or otherwise have that "reasonable, articulable suspicion" the angler had illegal fish, the warden has no authority to search that ice chest.

The warden can ask the angler if he can check it, but the angler can refuse.

This chink in wardens' authority drew attention this past year during an interim study by the Texas Legislature's House Committee on State Recreational Resources.

During a hearing of the committee's subcommittee on game wardens, chaired by Rep. Cook, TPWD law enforcement staff testified the requirement of probable cause is making it more difficult for them to enforce fishing and hunting regulations.

The subcommittee report recommended the Legislature enact legislation expanding game wardens' inspection authority.

Cook's bill, introduced earlier this week, is a result of that recommendation, he said.

Law enforcement's concern over the issue was heightened this past year when two cases in Minnesota, which is one of at least 22 other states where wardens must have probable cause or consent before inspections can take place, were dismissed.

In one, a warden entered an ice-fishing shack and found the occupant in possession of illegal drugs.

In the other, an angler refused to allow a warden to check his boat's live well.

Criminal cases filed in both instances were thrown out by the state's supreme court.

Cook's bill would remove the probable-cause requirement, and allow wardens to inspect all licenses, tags, stamps, any device that might be used to take wildlife resources, any wildlife or fish in a person's possession and the contents of any "container or receptacle that could reasonably be used to store or conceal a wildlife resource."

It would specifically exclude wardens from random searches of residences or temporary residences, including hunting camps, lodges, cabins, trailers and hotel or motel rooms.

It would prohibit wardens from conducting random stops and searches of vehicles on public roads. But wardens could stop and conduct random checks on private roads.

A similar bill is expected to be filed in the Texas Senate.

If the bills pass and are signed by the governor, they would take effect Sept. 1.

Both Cook and Stinebaugh, who supports the bill and says it will aid wardens in protecting the state's natural resources, believe most Texans will never notice the change.

"Most people feel (wardens) already have that authority," Cook said.

"Law-abiding citizens won't see a difference," Stinebaugh said.

--------------------------------------------------------------------------------
Shannon Tompkins covers outdoor recreation for the Chronicle. His column appears Thursday, Friday and Sunday.

Whiteeagle, it appears that you are a gentleman and a scholar, and I thank you for adding to this discussion.

It appears that the ownership question is perhaps impossible to answer...but if I had to make a call based on the information provided here, I would probably say that the 'Public,' meaning the citizens of the state, do own game animals, as defined by the state. In Texas, this does NOT include species such as Exotic deer, predators, or small game such as squirrels, rabbits, etc. I say that because most counties have no closed seasons or bag limits, so you can hunt them anytime you want, by any means, and totally eradicate them if you want.

The notion of public ownership of game animals that reside on private lands does raise an aditional question for me--Does the landowner have any responsibilities, real or implied, for the care of the animals, outside of not killing them with a weapon outside of legal seasons?

For instance, what if, on a 100,000 acre ranch in west Texas, the only water available was a handfull of stock tanks...is the owner obligated to ensure that these have water, for the survival of the game animals? A landowner can (and often do) overgraze a range, leaving nothing for wildlife to eat. He could plant a certain crop, even though he knows full well that it could be toxic or deadly to some game species.

So, while a landowner may not have 100%, iron-clad, official "ownership" of game animals, I would conclude that he does have de facto ownership, as he can, rightfully under the law, destroy those game animals indirectly through cultural practices. If ownership is defined as, "the right to manipulate and despose of as you deem fit," then landowners in Texas, or any private land, come very close to meeting that definition, with the single exception of NOT being allowed to take, kill, or allow others to do the same, those animals, outside of legal seasons and methods, with a weapon.

Paleohunter--

Believe me, if they could charge $10,000 for a slip--essentially nothing more than a couple of pilings outlining a section of public waterway and two cleats screwed into a bulkhead--they would. Most already require that you use their mechanics and maintenance people, buy your paint from their shops, etc. They charge all that the market would bear, and when they can't go any higher, they try to sell the marina to some developer who wants to build condos. As they do that, dockspace disappears, and prices go even higher. The dockspace/deer lease analogy is all too close in many ways. Unfortunately for those of us who pay, the truth is that, no matter what we do, the marketplace and its law of supply and demand will ultimately prevail.

TrademarkTexan--

Thanks. I take complements from Texans seriously. I've fished, hunted, hiked and/or worked in a lot of the country, and I've never felt as at home or as welcomed as in the Lone Star State--and that includes the town where I was born.

Paleohunte, you wrote:

quote:

---

No.

Is it not aginst the law to make false allegations? If what the parks and wildlife say is false, can they not then be sued? So "if" I own say a 1,000 acers in TX and I put a fence around that means that I own the deer and every other wild native creature on it? I can hunt them when I want? If I have cattle on it I can hunt them if I want? If I have Bison on it I can hunt them if I want? If I have deer on them can I not also hunt them if I want? I own them right?

"I never said that the land owner owns the game,but here can fence it in and deny other "trustees" the right to access it for harvest."

Then who does own the game? If its the trustees "us" then do we not have the right to do with it as we please? If we the "trustees" cannot do with it as we please then do we really own it?

---

In order:

1)Sue 'em if you've got the money to retain an attorney for what amounts to a frivolous case. It might be possible to construct a case where you as a game fenced land owner had standing, but as far as I can tell by your posts you would not qualify on that basis.

2) No, you don't own the wild native game.

3)No, you can't legally hunt them when you want.

4)Yes, subject to possible animal abuse and cruelty laws and any others that might cover your use of firearms, you can hunt all your cattle you want.

5)Yes, you can shoot imported bison same as #4. I don't think, but am not sure, that there are any "wild" bison in Texas that would be covered by game regulations, so there might be an exception but it would be a nearly unique situation in Texas.

6) No, see #2.

7) No, ibid.

8) A tougher one, the real answer is no one or everyone depending on your viewpoint, look up "res nullius", until game is reduced to possession, then it becomes the property of the person who harvested it, assuming he did so legally. However, as whiteeagle pointed out, the modern interpretation of "public trust" is more or less extended to game and the regulations of the resource for future generations is normally handled on the state level. There are other reasons involving interstate commerce as well.

9) No, because we as "trustees" have a governmental structure which enacts laws that we as individual members enjoying the benefits of our society and form of government contract to obey or suffer the consequences individually if we are caught disobeying them.

10) No, the "trustees" don't really own it. Just as in a trust for a minor child, the trustess overseeing that trust normally have no ownership interest in the trust, they just look after the assets, disburse them as required, etc. The state as your "trust" representative exercises its imperium powers over the game trust. Just as no one "owns" the air (taken as a mass of gas, not getting into property rights extending above your real estate), no one "owns" the game. But the person who controls access has a lot more control than the guy in an apartment in downtown Dallas or Plano. In other words, the rancher doesn't own the wild game, any more than the state does, but he can prevent anyone from harvesting it or designate who has the priviledge, if he so desires, by controlling access, whether for money or whim. Equally the state can, or at least thinks they can, prevent the rancher from harvesting game our of season or too many, etc.

This may not be clear to you, but I'm not being paid to educate you, so in a brief answer, I don't know how else to put it.

Gatogordo:
Thanks for getting down in the trenches with me on this. As it is still alittle foggy for me. I think I understand better now, so thank you. To the last sentence in number 10."Equally the state can, or at least thinks they can, prevent the rancher from harvesting game out of season or too many, etc." me, myself,and I will follow the states belief they are the ones with the guns and the police powers of arrest Again thanks for sticking with me in this. Have a great fourth.

[ 07-03-2003, 22:58: Message edited by: Paleohunter ]

And the antlers get puny from constant "inbreeding"..........LOL

Aggiedog:

While I am not a big fan of game fencing personally, your last statement shows how little you know about the business. There are some monster bucks behind those fences and the serious ranchers, to whom money is often a secondary consideratino, buy and/or outcross with the biggest bucks in the country constantly, including AI. May not be your and my idea of real hunting, but there can be little argument about the results. They are superior animals. Which is one reason, that some of the record books (Boone and Crockett?, I'm not a record book person so I think this is correct but am not certain) do not recognize trophies from game ranches.

No gordo,you didn't post the whole hughes vs. ok. case,because you want to only show select things from the case in order to support your lame stance.

Wether you like it or not gordo,the state owns the wildlife. What is the state? It's esentially the people and the governing bodies elected by those people,like the game commisions. As citizens and residents,we have a right to an equal share of wildlife and as a result,landowners aren't given the ownership of animals on there land. A prime example of land owners not having ownership of wildlife,is when someone shoots a wild game animal on someone elses land without permission from the landowner. What happens? They are charged with criminal trespass. Not destruction of property or anything else,because the animal belongs to all of us,not just the land owner. The only violation that has occured,is the unlawful entry onto a persons private property. Now the state may have statutes,which allow for confiscation of a game animal taken without permission to trespass on private property(a deterant),but it has nothing to do with the landowner owning the wild game,because they don't own it.

RMK;

Just for you, sweet cheeks.

HUGHES v. OKLAHOMA
441 U.S. 322 (1979)
Decided April 24, 1979
MR. JUSTICE BRENNAN delivered the opinion of the Court.

The question presented for decision is whether Okla. Stat., Tit. 29, 4-115 (B), violates the Commerce Clause, Art. I, 8, cl. 3, of the United States Constitution, insofar as it provides that "[n]o person may transport or ship minnows for sale outside the state which were seined or procured within the waters of this state . . . ."

Appellant William Hughes holds a Texas license to operate a commercial minnow business near Wichita Falls, Tex. An Oklahoma game ranger arrested him on a charge of violating 4-115 (B) by transporting from Oklahoma to Wichita Falls a load of natural minnows purchased from a minnow dealer licensed to do business in Oklahoma. Hughes' defense that 4-115 (B) was unconstitutional because it was repugnant to the Commerce Clause was rejected, and he was convicted and fined. The Oklahoma Court of Criminal Appeals affirmed, stating: "The United States Supreme Court has held on numerous occasions that the wild animals and fish within a state's border are, so far as capable of ownership, owned by the state in its sovereign capacity for the common benefit of all its people. Because of such ownership, and in the exercise of its police power, the state may regulate and control the taking, subsequent use and property rights that may be acquired therein."

We noted probable jurisdiction. We reverse.

I
The few simple words of the Commerce Clause - "The Congress shall have Power . . . To regulate Commerce . . . among the several States . . ." - reflected a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation. The cases defining the scope of permissible state regulation in areas of congressional silence reflect an often controversial evolution of rules to accommodate federal and state interests. Geer v. Connecticut was decided relatively early in that evolutionary process. We hold that time has revealed the error of the early resolution reached in that case, and accordingly Geer is today overruled.

A
Geer sustained against a Commerce Clause challenge a statute forbidding the transportation beyond the State of game birds that had been lawfully killed within the State. The decision rested on the holding that no interstate commerce was involved. This conclusion followed in turn from the view that the State had the power, as representative for its citizens, who "owned" in common all wild animals within the State, to control not only the taking of game but also the ownership of game that had been lawfully reduced to possession. By virtue of this power, Connecticut could qualify the ownership of wild game taken within the State by, for example, prohibiting its removal from the State: "The common ownership imports the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose." Accordingly, the State's power to qualify ownership raised serious doubts whether the sale or exchange of wild game constituted "commerce" at all; in any event the Court held that the qualification imposed by the challenged statute removed any transactions involving wild game killed in Connecticut from interstate commerce....

B
The view of the Geer dissenters increasingly prevailed in subsequent cases. Indeed, not only has the Geer analysis been rejected when natural resources other than wild game were involved, but even state regulations of wild game have been held subject to the strictures of the Commerce Clause under the pretext of distinctions from Geer.
The erosion of Geer began only 15 years after it was decided. A Commerce Clause challenge was addressed to an Oklahoma statute designed to prohibit the transportation beyond the State of natural gas produced by wells within the State. West v. Kansas Natural Gas Co.(1911). Based on reasoning parallel to that in Geer, Oklahoma urged its right to "conserve" the gas for the use of its own citizens, stressing the limited supply and the absence of alternative sources of fuel within the State. Nevertheless, the Court, in a passage reminiscent of the dissents in Geer, condemned the obvious protectionist motive in the Oklahoma statute and rejected the State's arguments with a powerful reaffirmation of the vision of the Framers..

The Court distinguished discriminatory or prohibitory regulations offensive to the Commerce Clause, such as the Oklahoma statute, from a valid "exercise of the police power to regulate the taking of natural gas" that was "universal in its application and justified by the nature of the gas and which allowed its transportation to other states...."

This formulation was employed only last Term to strike down New Jersey's attempt to "conserve" the natural resource of landfill areas within the State for the disposal of waste generated within the State. Philadelphia v. New Jersey (1978).

The Geer analysis has also been eroded to the point of virtual extinction in cases involving regulation of wild animals. The first challenge to Geer's theory of a State's power over wild animals came in Missouri v. Holland (1920). The State of Missouri, relying on the theory of state ownership of wild animals, attacked the Migratory Bird Treaty Act on the ground that it interfered with the State's control over wild animals within its boundaries. Writing for the Court, Mr. Justice Holmes upheld the Act as a properexercise of the treatymaking power. He commented in passing on the artificiality of the Geer rationale: "To put the claim of the State upon title is to lean upon a slender reed...."

Toomer v. Witsell (1948), which struck down as violations of the Commerce Clause and the Privileges and Immunities Clause certain South Carolina laws discriminating against out-of-state commercial fishermen: "The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource."

Although stated in reference to the Privileges and Immunities Clause challenge, this reasoning is equally applicable to the Commerce Clause challenge...."A State does not stand in the same position as the owner of a private game preserve and it is pure fantasy to talk of `owning' wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture." The `ownership' language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing `the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.' Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution."

C
The case before us is the first in modern times to present facts essentially on all fours with Geer. We now conclude that challenges under the Commerce Clause to state regulations of wild animals should be considered according to the same general rule applied to state regulations of other natural resources, and therefore expressly overrule Geer....

II
We turn then to the question whether the burden imposed on interstate commerce in wild game by 4-115 (B) is permissible under the general rule articulated in our precedents governing other types of commerce. Under that general rule, we must inquire (1) whether the challenged statute regulates evenhandedly with only "incidental" effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; (2) whether the statute serves a legitimate local purpose; and, if so, (3) whether alternative means could promote this local purpose as well without discriminating against interstate commerce. The burden to show discrimination rests on the party challenging the validity of the statute, but "[w]hen discrimination against commerce . . . is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of non-discriminatory alternatives adequate to preserve the local interests at stake."
Section 4-115 (B) on its face discriminates against interstate commerce. It forbids the transportation of natural minnows out of the State for purposes of sale, and thus "overtly blocks the flow of interstate commerce at [the] State's borders." Such facial discrimination by itself may be a fatal defect, regardless of the State's purpose, because "the evil of protectionism can reside in legislative means as well as legislative ends." At a minimum such facial discrimination invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives.

Oklahoma argues that 4-115 (B) serves a legitimate local purpose in that it is "readily apparent as a conservation measure." The State's interest in maintaining the ecological balance in state waters by avoiding the removal of inordinate numbers of minnows may well qualify as a legitimate local purpose. We consider the State's interests in conservation and protection of wild animals as legitimate local purposes similar to the States' interests in protecting the health and safety of their citizens. But the scope of legitimate state interests in "conservation" is narrower under this analysis than it was under Geer. A State may no longer "keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose." The fiction of state ownership may no longer be used to force those outside the State to bear the full costs of "conserving" the wild animals within its borders when equally effective nondiscriminatory conservation measures are available.

Far from choosing the least discriminatory alternative, Oklahoma has chosen to "conserve" its minnows in the way that most overtly discriminates against interstate commerce. The State places no limits on the numbers of minnows that can be taken by licensed minnow dealers; nor does it limit in any way how these minnows may be disposed of within the State. Yet it forbids the transportation of any commercially significant number of natural minnows out of the State for sale. Section 4-115 (B) is certainly not a "last ditch" attempt at conservation after nondiscriminatory alternatives have proved unfeasible. It is rather a choice of the most discriminatory means even though nondiscriminatory alternatives would seem likely to fulfill the State's purported legitimate local purpose more effectively.

We therefore hold that 4-115 (B) is repugnant to the Commerce Clause....

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.

...Because I disagree with the Court's overruling of Geer and holding that Oklahoma's law relating to the sale of minnows violates the Commerce Clause, I dissent.

In its headlong rush to overrule Geer, the Court characterizes that decision as "rest[ing] on the holding that no interstate commerce was involved." It is true that one of the rationales relied on by the Geer Court was that the State could exercise its power to control the killing and ownership of animals ferae naturae to prohibit such game from leaving the borders of the State and thus prevent the game from ever becoming the objects of interstate commerce. Since the Court in Geer was of the view that the challenged statute effectively prevented certain game from entering the stream of interstate commerce, there could be no basis for a Commerce Clause challenge to the State's law. I do not dispute the Court's rejection of this theory; as the Court points out, this rationale was rejected long before today.... It is obvious that the Court has simply set this theory up as a sort of strawman to facilitate the toppling of a decision which, in other respects, enunciates principles that have remained valid and vital, albeit somewhat refined, at least until today....

This Court long has recognized that the ownership language of Geer and similar cases is simply a shorthand way of describing a State's substantial interest in preserving and regulating the exploitation of the fish and game and other natural resources within its boundaries for the benefit of its citizens. In recognition of this important state interest, the Court has upheld a variety of regulations designed to conserve and maintain the natural resources of a State. To be sure, a State's power to preserve and regulate wildlife within its borders is not absolute. But the State is accorded wide latitude in fashioning regulations appropriate for protection of its wildlife. Unless the regulation directly conflicts with a federal statute or treaty, allocates access in a manner that violates the Fourteenth Amendment, or represents a naked attempt to discriminate against out-of-state enterprises in favor of in-state businesses unrelated to any purpose of conservation, the State's special interest in preserving its wildlife should prevail. And this is true no matter how "Balkanized" the resulting pattern of commercial activity....

Oklahoma does regulate the manner in which both residents and nonresidents procure minnows to be sold outside the State. But there is no showing in this record that requiring appellant to purchase his minnows from hatcheries instead of from persons licensed to seine minnows from the State's waters in any way increase appellant's costs of doing business. There also is nothing in the record to indicate that naturally seined minnows are any more desirable as items of commerce than hatchery minnows. So far as the record before us indicates, hatchery minnows and naturally seined minnows are fungible. Accordingly, any minimal burden that may result from requiring appellant to purchase minnows destined for sale out of state from hatcheries instead of from those licensed to seine minnows is, in my view, more than outweighed by Oklahoma's substantial interest in conserving and regulating exploitation of its natural minnow population.

Gatogordo, I was making light of the situation. Dont challange me on my knowledge, my friend, I help those ranchers improve their forage and habitat for both cattle and wild game. You have made this whole post very intertaining, and I thank you for that, but you my friend, dont know who is on the other side of the pen.

Here's a taste of deer management from my perspective:

In the western states, habitat restoration is in the process in some areas, and sorely funded or focused on in other areas. While the number of deer tags issued by a given area is important, as is what sex can be hunted, improving the deer range and habitat is also a key factor overlooked by people. You can do everything right relative to herd size management, but out west, the best tool is to improve vegetative species for which deer like, such as, ceanothus species (deer brush, et all), and other vegetative species. Often this must be done in a manner that complements both the cattle herd, and the deer herd. Deer range is diminishing in parts of the west, and agencies like BLM and the USFS could help immensely if they would excellerate their efforts managing non native noxious weed species that compete with, and either reduce or eliminate desirable species that deer need to sustain a healthy and populous herd. By doing this, our deer populations would increase to more desireable levels than thier current state in alot of parts of the west. Of course, some areas, ie Arizona, are negatively impacted by drought conditions over multiple years, but effort to improve the range will still pay off in dividends with a healthier and more populous herd. It isnt like alot of the mid west, and South where local crops assist the herd. Look at a map of the western states and realize alot of our deer habitat sits on BLM or USFS land. Even BIA, and state lands contribute here. So any vegetation management program that improves the area to a more native vegetative state will improve deer habitat.It's also the right thing to do. The message here is, if you reside in the west, it doesnt hurt to ask your local BLM, USFS people what efforts they are putting forth to improve the habitat, and manage noxious weeds so as they dont continue to wreak havic on our public lands, and even private lands. Having a vegetation management background, that is the integral part of deer management needs that I see, and get involved with locally.

There are alot of very good game managed ranches in the western states, but fortunately, they arent erecting 8-10 ft tall fences to keep them corraled. As a hunter, I dont see it as a challange to go to a zoo to hunt deer. I also think Boone and Crockett should not allow anyone who shoots a deer on one of those game farms from making the record book. While I am sure there are some challanging ranches, by and large, I suspect the guide gets you to where "they know" the animal is, turns you loose, and around the corner lo and behold, there he is. I'm sorry, as a hunter, that is not hunting. If you can offord it, more power to you, but it still is not hunting in my book, and I hope not Boone and Crockett's either. Later,

A State doesnt "own" the wildlife perse, but rather they (each state) are charged by federal commision to "manage" them much like the BLM with "OUR" land that they see to. They are no ones "possesion", and they are everyones. They are not divied up like water rights, they are free roaming creatures which is obviously a difficult concept for some to grasp.

If our nations bird, a bald eagle, lands inside your fenceline do you have the right to kill it or are you still subject to poaching laws within your property? YES you are still subject to poaching laws, your piece of land is still American soil first, not a soverign nation. And both state and federal regulations are to be upheld and are very much enforcable even on YOUR land. Spew all the legal jargon you want to, thats the way it is.