Oysters, raisins, and water

Not a recipe for stew, but some of the elements of a US Supreme Court decision issued yesterday. Last month we noted John Eccheverria's discussion of the then-pending Horne v. Dept. of Agriculture, a case in which the court was asked to decide whether a government regulation requiring raisin growers to hand over some of their raisins to the government was a "taking" of property requiring compensation. The case seemed to bear a striking resemblance to a 1929 case, Leonard & Leonard v. Earle, in which the Supreme Court had ruled that a Maryland law requiring oyster packers to turn over shells to the state was not a taking. Echeverria noted that counsel for petitioners in Horne argued that the early case should be distinguished on the grounds that oysters, unlike raisins, were wild animals, and therefore the property of the state to begin with. This seemed to be a weak legal argument, running against Supreme Court decisions that called public ownership of wildlife "a mere fiction".

Piles of oysters in 1884 (Oysters for the Bay.Com)

It turns out that yesterday's decision bought the argument, a development with potentially far-reaching consequences for the ability of the government to protect nature without running afoul of the takings clause. Echevveria explains in a post yesterday:

Hunting and conservation

Irus Braverman recently posted "Conservation and Hunting: Till Death Do They Part? A Legal Ethnography of Deer Management". The abstract:

Claims that hunters are exemplar conservationists would likely come as a surprise to many. Hunters, after all, kill animals. Isn’t there a better way to appreciate wildlife than to kill and consume it? Yet there is no mistake: wildlife managers frequently make the claim that hunters, in the United States at least, are in fact some of the greatest conservationists. This article explores the complex historical and contemporary entanglements between hunting and wildlife conservation in the United States from a regulatory perspective. Such entanglements are multifaceted: hunting provides substantial financial support for conservation and hunters are the state’s primary tools for managing “big game” populations. Additionally, many wildlife officials are themselves hunters, and wildlife management programs are often geared toward the interests of hunters. Statutes, regulations, and governmental policies have been set in place that both reflect and reinforce this intimate relationship. This article draws on seven in-depth, semi-structured interviews, mainly with government wildlife managers, as well as on my own participatory observations accompanying a wildlife manager on a hunting trip, to trace the interconnections between hunting and conservation and the detailed regulatory regimes that have emerged around them. The management of the white-tailed deer in New York State will serve as a case study for these explorations of how American wildlife officials think about, and practice, their work of governing wildlife hunting.

Indian fishing rights

Thanks to the History Carnival hosted this month at NiCHE, we learned of Stephanie Milne-Lane's recently posted "Go Fish", an interesting look at the history of Indian fishing rights in the American Northwest. This is obviously a fruitful topic (see, e.g., here and here). From the post:

Looking at an image of (renowned Washington governor) Isaac Stevens, two things come to mind. First, he has a striking resemblance to Brad Pitt. Second, he looks like a man that gets what he wants, come hell or high water. As the first Territorial Governor of Washington and the Superintendent of Indian Affairs, Stevens did get what he (and by extension President Franklin Pierce) wanted. Charged with securing the land and cooperation of local tribes, Stevens negotiated a series of treaties, procuring the legal rights to 64 million acres of land in less than a year. Exuding the nineteenth century belief that land not dedicated to traditional farming was going to waste, Stevens’ treaties carried the underlying belief that Native Americans needed to assimilate into general—white—American culture by living and farming on designated reservations. However, Stevens also included a safety net of sorts in his treaties. Native Americans negotiated one key phrase in all of the treaties: “right of taking fish at all usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory.” In Stevens’ eyes, the phrasing eliminated the U.S. government’s obligation to supply food to the tribes during the transitional period from their traditional way of life to their lifestyle on reservations.[see Gabriel Chrisman, "The Fish-in Protests at Franks Landing"] His work complete, Stevens left the rain of the Pacific Northwest in 1857. However, his treaties and their phrasing would have long-standing implications. 

Isaac Stevens after his promotion to Brigadier General in 1861.

Committed to the yeoman farming ideal, many early American settlers concerned themselves with farming, logging, and mining, while Native Americans continued to fish at their usual and accustomed areas. However, by the turn of the 20th century the bountiful salmon and trout of the Evergreen State brought the issue of native fishing rights to the forefront. A tug-of-war between native fishing rights and entrepreneurial commercial fishing endeavors further strained already tense relationships, illuminating the muddied intentions of the state of Washington and prompting legal action.

More at SHRA's website.

Economics of Legal History

Daniel Klerman recently published an edited collection, Economics of Legal History (Elgar, 2015), which includes influential pieces on the history of natural resources law, including Harold Demsetz's "Toward a Theory of Property Rights", Robert Ellickson's "A Hypothesis of Wealth-Maximizing Norms: Evidence from the Whaling Industry".

The publisher's description:

Generations of law and economics scholars have been fascinated by history, seeing in its institutions and laws a vast database for illustrating their theories. Equally, historians have seen economic analysis as a helpful tool with which to analyze legal institutions. As a result a vibrant field has emerged in which people trained in law, economics, history and political science have all made significant contributions. This volume brings together the most important works examining legal history from an economic perspective. An original introduction by the editor provides a useful roadmap to the field.