The state has an inherent power to regulate hunting and fishing and to prohibit from time to time such practices, in order to conserve those natural resources for the ultimate benefit of all people[i].

A state regulates hunting and fishing through the legislature.  Within constitutional limitations, the legislature, for the purpose of conserving and protecting fish, may pass such laws it deems wise[ii].

A legislature may classify the territory within a state for the purpose of making different regulations or restrictions in different portions of the state relative to the taking of fish or game[iii].  However, there may be sound reasons for such legislative classification.

The power of the state to originate such legislation carries with it the further power to change existing laws, including regulation and prohibition, to meet changing conditions[iv].  Also, this power is not lost simply because those affected have been licensed to operate under and by virtue of the conditions of prior laws.

The right of a state to protect fish is not confined to navigable or public waters, but extends to all waters within the state, public or private, where the animals are accustomed to resort for spawning or other purposes, and of which they have freedom of passage to or from the fishing grounds of the state[v].

The state owns the fish in its streams and has ample power to preserve and protect them from destruction under its police power, and private right and convenience must yield to it[vi].  This right of the state is abundantly sustained by the highest authority.

The legislature may delegate to a municipality the power to regulate the taking of fish within its corporate limits[vii].  Until the legislature delegates to a municipality the power to regulate and protect fishing within its corporate limits, the municipality does not have the power to exercise that authority.

Further, except in private waters of which the municipality has the title, it has in the absence of statute or custom, no title to or exclusive control over the fisheries within its limits[viii].

Where the legislature specifically delegates rule-making authority to an agency, the agency’s regulations are presumed valid[ix].  The legislature may charge a particular department with such duties as[x]:

• the duty to preserve, protect, and perpetuate the state’s wildlife resources; and
• the duty to maximize hunting and fishing recreational opportunities.

The legislature may also grant a department authority to adopt and enforce reasonable rules prohibiting or governing the time, place, and manner of taking or possessing game animals.  Appropriate rules may be adopted to fill in the gaps in legislation if such rules are necessary to effect a general statutory scheme.

The game and fish within the borders of a state belong to the sovereign.  The title is in all the inhabitants of the state and no person can acquire any absolute title, as against all others, except by capture and subjection to his/her own control.

It is not only the right of the state but also its duty to preserve for the benefit of the general public the fish in its waters, in their migration and in their breeding places, from destruction or undue reduction in numbers through the caprice, improvidence, or greed of the riparian proprietors as well as trespassers[xi].

The police power of the state extends to the protection of the lives, health, comfort, and quiet of all persons and the protection of all property within the state.  Persons and property are subject to such restraints and burdens as are reasonably necessary to secure the general comfort, health, and prosperity[xii].

The right of individuals to hunt, trap, and fish in a lawful manner is clearly a proper subject of police power protection.  Similarly, the preservation of game birds is a valid exercise of the police power of the state[xiii].

A grant of concurrent jurisdiction to two states over a river of which the middle of the channel is the boundary line between them does not preclude one of them, without the concurrence of the other, from regulating fishing by its own residents in that part of the river that is within its own territorial limits[xiv].

To secure the enforcement of restrictions on the taking of fish and game, the state may make it a criminal offense to do so in violation of its regulations.  An order of restitution in addition to the statutory fines and jail terms may also be imposed against persons convicted of criminal violations related to hunting regulations[xv].

[i] Olson v. State Conservation Com., 235 Wis. 473 (Wis. 1940).

[ii] People v. Monterey Fish Products Co., 195 Cal. 548 (Cal. 1925).

[iii] State v. Tice, 69 Wash. 403, 405 (Wash. 1912).

[iv] Tuttle v. Wood, 35 S.W.2d 1061 (Tex. Civ. App. 1930).

[v] State v. Southern Coal & Transp. Co., 71 W. Va. 470 (W. Va. 1912).

[vi] Id.

[vii] Nash v. Vaughn, 133 Fla. 499 (Fla. 1938).

[viii] Ex parte Bailey, 155 Cal. 472, 475 (Cal. 1909).

[ix] Armstrong v. State, 91 Wn. App. 530 (Wash. Ct. App. 1998).

[x] Id.

[xi] State v. Hill, 98 Miss. 142 (Miss. 1910).

[xii] Opinion of Justices, 128 N.H. 46 (N.H. 1986).

[xiii] In re Schwartz, 119 La. 290 (La. 1907).

[xiv] Miller v. McLaughlin, 281 U.S. 261 (U.S. 1930).

[xv] State v. Fertterer, 255 Mont. 73, 87 (Mont. 1992).