Water, Fish, and Game.

A statute making it unlawful for a riparian owner to divert water into another state was held not to deprive the property owner of due process. “The constitutional power of the State to insist that its natural advantages shall remain unimpaired by its citizens is not dependent upon any nice estimate of the extent of present use or speculation as to future needs. . . . What it has it may keep and give no one a reason for its will.”301 This holding has since been disapproved, but on interstate commerce rather than due process grounds.302 States may, however, enact and enforce a variety of conservation measures for the protection of watersheds.303

Similarly, a state has sufficient control over fish and wild game found within its boundaries304 so that it may regulate or prohibit fishing and hunting.305 For the effective enforcement of such restrictions, a state may also forbid the possession within its borders of special instruments of violations, such as nets, traps, and seines, regardless of the time of acquisition or the protestations of lawful intentions on the part of a particular possessor.306 The Court has also upheld a state law restricting a commercial reduction plant from accepting more fish than it could process without spoilage in order to conserve fish found within its waters, even allowing the application of such restriction to fish imported into the state from adjacent international waters.307

The Court’s early decisions rested on the legal fiction that the states owned the fish and wild game within their borders, and thus could reserve these possessions for use by their own citizens.308 The Court soon backed away from the ownership fiction,309 and in Hughes v. Oklahoma310 it formally overruled prior case law, indicating that state conservation measures discriminating against out-of-state persons were to be measured under the Commerce Clause. Although a state’s “concerns for conservation and protection of wild animals” were still a “legitimate” basis for regulation, these concerns could not justify disproportionate burdens on interstate commerce.311

Subsequently, in the context of recreational rather than commercial activity, the Court reached a result more deferential to state authority, holding that access to recreational big game hunting is not within the category of rights protected by the Privileges or Immunities Clause, and that consequently a state could charge out-ofstaters significantly more than in-staters for a hunting license.312 Suffice it to say that similar cases involving a state’s efforts to reserve its fish and game for its own inhabitants are likely to be challenged under commerce or privileges or immunities principles, rather than under substantive due process.

Footnotes

301
Hudson County Water Co. v. McCarter,, 209 U.S. 349, 356–57 (1908). back
302
Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982). See also City of Altus v. Carr, 255 F. Supp. 828 (W.D. Tex.), aff’d per curiam, 385 U.S. 35 (1966). back
303
See, e.g., Perley v. North Carolina, 249 U.S. 510 (1919) (upholding law requiring the removal of timber refuse from the vicinity of a watershed to prevent the spread of fire and consequent damage to such watershed). back
304
Bayside Fish Co. v. Gentry, 297 U.S. 422, 426 (1936). back
305
Manchester v. Massachusetts, 139 U.S. 240 (1891); Geer v. Connecticut, 161 U.S. 519 (1896). back
306
Miller v. McLaughlin, 281 U.S. 261, 264 (1930). back
307
Bayside Fish Co. v. Gentry, 297 U.S. 422 (1936). See also New York ex rel. Silz v. Hesterberg, 211 U.S. 31 (1908) (upholding law proscribing possession during the closed season of game imported from abroad). back
308
Geer v. Connecticut, 161 U.S. 519, 529 (1896). back
309
See, e.g., Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928) (invalidating Louisiana statute prohibiting transportation outside the state of shrimp taken in state waters, unless the head and shell had first been removed); Toomer v. Witsell, 334 U.S. 385 (1948) (invalidating law discriminating against out-of-state commercial fishermen); Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284 (1977) (state could not discriminate in favor of its residents against out-of-state fishermen in federally licensed ships). back
310
441 U.S. 322 (1979) (formally overruling Geer). back
311
441 U.S. at 336, 338–39. back
312
Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371 (1978). back