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of their high prestige-value in the legal system have traditionally produced favorable reactions from judges who have otherwise objected to the expansion of governmental activities in terms of mere police power. The scope of the latter term "health, safety, and general welfare" is sufficiently broad to serve as a legal buttress for the exercise of governmental conservation of natural resources. Police power is the common denominator, not the differential, as it were, in the constitutional theory of the management of resources. Beyond control supportable by these theories, however, the courts have been loath to go, quite in contrast to European theory and practice." Land-use zoning is probably the most ambitious current attempt at conservation of natural resources under the police power.12
Certain types of land use, however, have been subject to rather strict control during times of emergencies and over limited areas, as in attempts at control of the spread of plant diseases, insect pests, and obnoxious weeds. The rationale is in terms of the prevention of the danger of immediate physical waste, rather than long-run maladjustment. Frequently, the purchase power of government intervenes in the same instance and may practically supplant regulations drawn in terms of the police power by buying off the objectors. Thus regulations for the prevention, suppression, and use of fires obtain reenforcement from tax concessions, demonstrative and cooperative projects, from which the individual may profit more than he loses by subjecting himself to the specific regulations. Only two States are reported to have made statutory attempts at regulating tree cutting, and the laws are conceded to be "not strictly enforced, and probably would not be particularly effective if they were." 13
The classic statement of sovereign ownership of natural resources, particularly of wildlife, is to be found in Blackstone's Commentaries,14 one of the most widely read books among American lawyers and judges during the formation of American constitutional law. English legal historians have quarreled with Blackstone's analysis, admitting that it may have been law during the early medieval period but vigorously denying that it was the law of England from the time of the Whig revolution onwards, with the possible exception of special regal claims to swans and whales.15
In America, however, Blackstone's dictum of sovereign ownership of resources was the only theory with which the early judges were familiar, with the result that it has become firmly intrenched in American law, as applied particularly to wildlife and, by a rough analogy, to oil and gas and has also influenced some of the land and mineral laws for the disposal of the public lands. Its acceptance has greatly simplified the problem of sustaining the constitutionality of the regulatory laws which the growth of the government of resources necessarily brought in its wake. According to this theory, if the State owns a given resource in its sovereign capacity in trust for the people, the State may obviously choose whether to
11 In making comparisons with the degree of control exercised by European governments, it is important to recognize the differential theories of ownership in the two systems of common law and Roman law, particularly with reference to minerals. 13 In 1926 the U. S. Supreme Court in Euclid v. Ambler Realty Co., 272 U. S. 365, sustained the general constitutionality of zoning, thus shifting the point of legal attack to specific defects of particular zoning cases. See R. B. Wertheimer, “Constitutionality of Rural Zoning," 26 California Law Review (1938), pp. 175-205, and Walker, Some Consideration in Support of the Constitutionality of Rural Zoning as a Police Power Measure U.S. Resettlement Administration, Land Use Publication No. 11, 1936.
13 The Virginia cedar rust law. which required the summary destruction of diseased trees in proximity to apple orchards, was upheld in Miller v. Schoene, 276 U. S. 272 (1927), where Justice Stone stated, "When forced to such a choice the State does not exceed its constitutional power by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public." (At p. 279.) See U. S. Forest Service, A National Plan for American Forestry, 73d Cong., 1st sess., S. Doc. 12, pp. 996-1004. The New Mexico constitution (XV, 2) expressly authorizes "such control of private forest lands as shall be necessary for the prevention and suppression of forest fires. Cf. the effective regulation of private forests that are found in Switzerland and the Scandinavian countries. Ibid., pp. 1025-1027, 1032-1035. See also the section entitled "Is Further Public Regulation Desirable in the United States?" pp. 1038-1050.
14 II, pp 410-412.
15 The first criticism of Blackstone was apparently made by Edward Christian in his Treatise on the Game Laws in 1817. By the middle of the nineteenth century English legal practice had completely shifted from the theory of royal monopoly to one of landed-gentry dominance so that the English court could rule, in Blades v. Higgs, 11 Eng. Rep. 1474 (1865), without even referring to the theory of sovereign ownership, that a land owner per se had such an exclusive right to wild creatures on or flying over his land that he could forcibly recapture them if removed elsewhere.
dispose of it or retain it, and, if a policy of disposition is adopted, the State may prescribe the conditions under which ownership or use may be acquired by others. From a legal point of view, this theory makes it very difficult to question the constitutional validity of the conditions under which the ownership of resources may be "captured" or their use legally controlled, for the State is theoretically giving something away which need not be given away at all.
One of the first cases in which the American courts had occasion to predicate governmental control of natural resources upon the theory of public ownership was that of Swift v. Maryland,16 in which the United States Supreme Court said:
The State holds the propriety of this soil for the conservation of the public rights of fishery there. on, and may regulate the modes of that enjoyment so as to prevent the destruction of the fishery. In other words, it may forbid all such acts as will render it less valuable, or destroy it altogether. This power results from the ownership of the soil, from the legal jurisdiction of the State over it, and from its duty to preserve unimpaired these public uses for which the soil is held.
A State court has stated the theory of sovereign ownership as follows: The ownership being in the people of the State—the repository of the sovereign authority-and no individual having any property rights to be affected, it necessarily results, that the legislature, as the representative of the people of the State, may withhold or grant to individuals the right to hunt and kill game or qualify and restrict it, as, in the opinion of its members, will best subserve the public welfare.17
The advantageous legal position into which the sovereignty theory has placed wildlife conservation has also served to defend it against objections of alleged interference with interstate commerce or discrimination against nonresidents. In the absence of congressional consent, such objections ordinarily override state regulation, but in Geer v. Connecticut 18 and McCready v. Virginia 19 the United States Supreme Court favored the cause of wildlife conservation on the ground that otherwise effective enforcement of State law would be hamstrung, and after all, that which the State theoretically owned it could dispose of as it pleased.19 Water was also owned by the State in common-law theory. The riparian owner merely has usufructuary rights with respect to rivers and lakes "the simple use of it [i. e., the water] while it passes along." "20 Even in the Western States that have renounced the common-law rules relating to water and its uses, the doctrine of public ownership of water remains intact and is, in fact, specifically reenforced by express constitutional provisions in six States. 21
Probably the most vigorous judicial enunciation of the theory of sovereign ownership of water occurs in Mr. Justice Holmes' opinion in Hudson Water Co.
16 18 How. 71 (1855) sustaining a State prohibition of catching oysters with scoop or drag. This case was decided before the passage of the fourteenth amendment with its "due process" clause. Most of the game laws had crystallized in their present form before the courts discovered the extensive meaning of that clause.
17 Magner v. People, 97 Ill. 320, at pp. 333-334.
18 161 U.S. 519 (1896). Chief Justice White, who gave the opinion for the court, cited Greek and Roman law, French Galic law, the Napoleonic Code and Blackstone, and also called attention to the place of the State's police power. In 1900 Congress passed the Lacey Act (31 Stat. 187) expressly endorsing the Geer case.
1994 U. S. 391 (1877), sustaining a State law prohibiting noncitizens from planting oysters in soil covered by tidewaters Also see R. H. Connery, Governmental Problems in Wildlife Conservation (1935), p. 53, where it is suggested that the need for the ownership theory may lessen with the broadening of the police power.
10a Explicit constitutional language comes to the aid of the four States of Louisiana, Massachusetts, Ohio, and Texas in their management of natural resources in the interest of conservation. In 1912, the Ohio constitution was amended to authorize legislation for the "conservation of the natural resources of the State, including streams, lakes, submerged and swamp lands and the development and regulation of water power and the formation of drainage and conservation districts forests minerals," (II, 36). In 1917, the Texas constitution authorized State "conservation and develop ment of all the natural resources."—(XVI, 51). In 1918, the Massachusetts constitution declared as "public uses" the conservation, development and utilization of the agricultural, mineral, forest, water and other natural resources of the Commonwealth."-(Amendment XLIX). In 1921, Louisiana made its conservation department a constitutional agency to "protect, conserve and replenish all the natural resources of the State, and to prohibit and prevent the waste or any wasteful use thereof."—(V, 18, 20). From an examination of the few cases arising under these explicit provisions, it does not appear that such explicit language has substantially affected the legal powers of the State.
20 Justice Story in Tyler v. Wilkinson, 24 Fed. Cas. 472 (1827).
11 Arizona, California, Colorado, Montana, New Mexico, and North Dakota. United States Census of Irrigation 1930, pp. 26-29. The Idaho constitution (VIII, 2) authorizes the State to control and develop unused water power. See S. C. Wiel, "Origin and Comparative Development of the Law of Water Courses in the Common Law and in the Civil Law,' 6 California Law Review (1916), pp. 245-267, 342-371. In his article on the "End of Law as Developed in Legal Rules and Doctrines," 27 Harvard Law Review (1914), 195, Roscoe Pound noted the application in game and water law of the theory of sovereign ownership and suggested, "In a crowded world the social interest in the use and conservation of natural media has become more important than individual interests of substance," p. 234.
v. McCarter, decided only shortly before the calling of the Conference of Governors in Washington, 1908. Holmes stated:
The State as quasi sovereign and representative of the interests of the public has a standing in court to protect the atmosphere, the water, and the forests within its territory, irrespective of the assent or dissent of the private owners or the land most immediately concerned. * * * The public interest is omnipresent wherever there is a State, and grows more pressing as population grows. We are of the opinion, further, that the constitutional power of a 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. The legal conception of the necessity is apt to be confined to somewhat rudimentary wants, and there are benefits from a great river that might escape a lawyer's view. But the State is not required to submit even to an aesthetic analysis. Any analysis may be inadequate. It finds itself in possession of what all admit to be a great public good, and what it has it may keep and give no reason for its will.22
This doctrine was recently given a positive emphasis by the New Hampshire Supreme Court when it upheld the program of the State Water Resources Board. In the course of an opinion stressing the value of "looking ahead" at "future needs," the court stated: "The State clearly may engage in undertakings to develop its resources. It is no less in its interest than to conserve them; what may be saved is not the limit of legislative power; what may be produced is also a proper subject of action." 22a
The theory of sovereign ownership has been less clearly developed with reference co minerals, the law of which today usually forms an integral part of that of real property. This is in marked contrast to the Continent, where legal theory had for a long time recognized the ownership of minerals as quite separate and apart from the ownership of the soil, reserving ownership of the former to the sovereign. "In Europe from the earliest times metal mines seem to have been the property of the State or ruling family" in Greece, Rome, and in the Holy Roman Empire.23 In England there was never quite the same development of the "mines royal." Indeed scattered cases, as in Elizabeth's reign, are to be found when regalian rights to minerals were confidently asserted, but the "Glorious Revolution" quickly quieted these pretensions. Holdsworth concludes that the English kings "never succeeded in making good their claims over all mines to the same extent as the continental kings. The regalian rights were recognized as to gold and silver-in the same way the swan was the regal bird-but coal and the basic metals like iron, copper, and lead all belonged exclusively to the owner of the soil.2
The rule of the "mines royal" was dramatically rejected by an American court, at he time of the California gold rush, as incompatible with American institutions.25 It involved a personal prerogative of the King and not an incident of sovereignty, ran the argument, and hence could not have been transmitted to the American States. There can be no quarrel that the decision was highly
22 209 U. S. 349. The case sustained the constitutional power of the State of New Jersey to prohibit the transport of water into other States. The U. S. Supreme Court deliberately puts its decision upon the broader grounds (as quoted above) than that urged in the lower court (riparian rights). Cf. Opinion of the Justices, 103 Maine 506 (1907), which approved legislation restricting tree cutting on wild or uncultivated but private lands, in order to prevent or lessen droughts and freshets, protect, preserve, and maintain the natural water supply, and prevent the erosion of lands and the filling-up of rivers. The California Supreme Court in Tulare Irrigation District v. Lindsay Strathmore Irrigation District, 3 Calif. (2d) 489 (1935), declared that "The protection and conservation of the natural resources of the State are in the general welfare and serve a public purpose," p. 529.
Holmes' principle of sovereign rights has been. uled inapplicable to natural gas and oil in Oklahoma v. Kansas Natural Gas Co., 221 U. S. 229 (1911), and Pennsylvania v. West Virginia, 262 U. S. 553 (1923). In Nebbia v. New York, 291 U. S. 502 (1934), Mr. Justice Roberts stated, "Regulation of a business to prevent waste of the State's resources may be justified,” citing the Champlin case discussed infra.
22a Conway v. New Hampshire Water Resources Board, 199 Atl. 83 (1938), p. 87.
23 F. G. Tryon and E. C. Eckel (eds.), Mineral Economics (1932), p. 84. See also T. A. Rickard, Man and Metals (1932), p. 594 where he traces the development of mining law. As of the end of the Middle Ages, the following principles were enumerated. (1) Mineral ownership was separate from surface tenure; (2) the sovereign was the sole proprietor of the mines, and the only person privileged to grant to others the right of working them; (3) if he did not care to operate the mines himself, he retained a part proprietorship in the proceeds; and (4) the management was appointed and controlled by him.
24 Holdsworth, History of English Law, I, p. 151. This seems to have been conceded as early as in the reign of Henry III in the thirteenth century when the Forest Charter of 1217 "accorded to every freeman the right to make a warren, or pond, or marl pit, or ditch-in saort, to dig." Rickard, op. cit., pp. 789-90.
26 Moore v. Snow, 17 Calif. 199 (1861), overruling Hicks v. Bell, 3 Calif. 219 (1853). The opinion was by Field who later became a robust member of the United States Supreme Court.
practical at the time, for a contrary result might easily have been productive of much violence from the gold miners who would not choose to understand that the gold for which they had labored and fought belonged to a "sovereign."
It would be error to conclude, however, that Field's judicial rejection of the sovereign theory has been completely accepted in this country without notable countercurrents, though of a somewhat special or restricted scope, it is true. In fact, the United States Supreme Court, on which Field was serving at the time, recognized the validity of the sovereignty doctrine to a limited extent in the case of Shoemaker v. United States. 26 This case involved a mineral reservation in the grant to Lord Baltimore, to which it was held that the State of Maryland succeeded in the course of the Revolution and which was ceded in turn to the United States in 1791 at the time of the creation of the District of Columbia.
In oil and gas, however-which are the only mineral fuels over which gov ernment has attempted to exercise control-the sovereignty theory was origi nally invoked to sustain regulations of the conditions under which oil might be reduced to absolute ownership, drawing phraseological analogies to the com mon-law rule of "capturing" wild animals.
The court speaks of natural gas as a mineral ferae naturae, and the first decision relies largely upon the analogy of game and fish laws; the theory being that the title to natural gas does not vest in any private owner until it is reduced to actual possession.27
But the later court decisions sustaining the power of the States to control the use and development of minerals and mineral fuels have introduced another theory-the theory of waste and its prevention-which has tended to supersede the earlier emphasis upon sovereign ownership by way of a tenuous analogy to ferae naturae. This later development has also been accompanied by another doctrine, the theory of correlative rights of common property owners.2 The term "waste" is obviously an emotive term-nobody favors waste, least of all judges trained in the common-law system with its cardinal emphasis upon private property and its preservation. Furthermore "waste" is a word of some standing in the common-law of real property, in which it refers to a property tort committed by an occupant of realty that adversely affects persons having future interests in the realty. Logically, this old principle has little in common with present oil conservation statutes, but that may not be important. It is important that the new regulations employ phraseology that is already well established in the existing legal system, although the actual application of the phraseology may be quite new. Like judicial legislation, the conservation statutes may mask their novelty by verbal appeals to accepted principles. 29
The concept of waste has since been expanded from purely physical contentfor example, the requirement of plugging abandoned oil wells-to definitely economic fields, as the control of oil production by means of proration. Under the proration system a state administrative body allocates among well operators the amount of oil that may be produced in any particular field during a specified time period. This proration scheme has been sustained by the United States Supreme Court in Champlin Refining Co. v. Oklahoma Corporation Commission, as a means of conserving an exhaustible natural resource;30 but the courts and the lawyers appear reluctant as yet to sustain compulsory unit-operation of oil fields.
26 147 U. S. 282 (1893).
27 Ernest Freund, Police Power (1904), p. 448. See cases cited by N. Ely, Oil Conservation Laws (1933), pp. 3-18, and in his recent article on "The Conservation of Oil," 51 Harvard Law Review, p. 1209 (1938).
18 Lindsay v. Natural Carbonic Gas Co., 220 U. S. 61 (1910) and Bandini v. Superior Court, 284 U. S. 8 (1931).
See Commonwealth v. Trent, 117 Ky. 34 (1903), where the court said, "The Legislature may protect from waste the natural resources of the state, which are the common heritage of all," p. 46. In Henderson Co. v. Thompson, 300 U. S. 258 (1937), the Supreme Court upheld a statute prohibiting the use of sweet gas in the manufacture of carbon black as an intolerable waste which the State could prevent in the needs of conservation.
30 286 U. S. 210 (1931). Also see J. H. Marshall & N. L. Meyers, "Legal Planning of Petroleum Production," 41 Tale Law Journal 53 (1931), 42 Ibid. 702 (1933). The Oklahoma Supreme Court had sustained the proration statute and the commission's orders pursuant thereto in Julian v. Capshaw, 145 Okla. 237 (1930). Cf. Thompson v. Consolidated Gas Utilities Corp., 300 U. S. 55 (1937), where the court invalidated a proration order bearing "no reasonable relation either to the prevention of waste or the protection of correlative rights."
Apart from the theories of sovereign ownership and the prevention of waste, the management of natural resources is on the same legal basis as the management of human resources and presumably subject to all the vicissitudes of judicial climate which the police power has so tragically encountered.
Conservation Trends in New York. 3-So many references will be made in the following chapters to the outstanding activities of the Empire State in defining the scope and methods of the State management of resources-admittedly an "epic in public administration"-that an attempt will here be made to relate the career of one State in developing its government of resources as it interweaves to form a picture as a whole. The method of approach is thus not by function-whether land or water, mineral, or human resources-but by the government involved, the State of New York.
Among its sister States, New York has traditionally pioneered in devising and executing far-reaching plans for the conservation of its resources, natural and human. Thus, the first permanent forestry government dates from the New York Commission of 1885.32 The oldest permanent geological survey dates from the New York act of April 15, 1836, which directed the secretary of State to "prepare a plan for the geological survey of the State."33 The first game license law was passed by New York in 1864. The first office of a State "superintendent of public schools" was established in 1812 to "digest and prepare plans." The first State workman's compensation act was enacted by New York in 1910.34 Along with the States of Louisiana, Nebraska, and Wisconsin, New York shares the distinction of deriving its conservation agency uninterruptedly from the early conservation movement of Theodore Roosevelt's time. Other examples of the paramount position of New York in resources conservation history could also be cited. DeWitt Clinton and his Grand Vision of the Erie Canal may be taken as a clear example of comprehensive State planning in New York in the early nineteenth century, while Governor Alfred E. Smith's Commission on Housing and Regional Planning is a distinct planning event in the present century.
Main events in New York's management of resources
31 In the preparation of this section the author has drawn very heavily upon a publication of the New York Department of Conservation, entitled Fifty Years of Conservation in New York State, 1885-1935 (prepared by Gurth Whipple for the mid-centennial celebration), and upon the helpful suggestions of Commissioner Lithgow Osborne and his associates in the Department of Conservation, Mr. Wayne D. Heydecker, Director of State Planning, Mr. Harold M. Lewis, N. R. C. Consultant to the State Planning Council of New York, and Dr. Chas. C. Adams, director of the State Museum.
32 N. Y. Laws 1885, c. 283. For a description of the three other States which also experimented with the idea at the same time, see ch. II, p. 70.
33 Assembly Journal, LIX, p. 29. As pointed out in the chapter on minerals, these early State surveys included other items than strictly geological ones. Thus in New York, the Survey filed reports on zoology in 1842, on flora in 1843, and on general agriculture in 1846-59. See list in Hasse's Index of New York, pp. 429-430.
34 New York Laws 1864, c. 426. New York Laws 1812, c. 242. From 1795 to 1800 annual grants for the support of education were made by the State to the localities where matched. In contrast to the other illustrations cited in the text, New York failed to retain this lead by removing the school superintendent from office in 1821, for political reasons, and transferring his function ex officio to the secretary of State until 1854 when the office of "superintendent of public instruction" was established. N. Y. Laws 1910, c. 674. This act was limited in scope, but in 1914 a general law was passed.