Amdt14.S1.4.8.3 Water, Fish, and Game

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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.1 This holding has since been disapproved, but on interstate commerce rather than due process grounds. 2 States may, however, enact and enforce a variety of conservation measures for the protection of watersheds. 3

Similarly, a state has sufficient control over fish and wild game found within its boundaries 4 so that it may regulate or prohibit fishing and hunting. 5 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. 6 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. 7

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. 8 The Court soon backed away from the ownership fiction, 9 and in Hughes v. Oklahoma10 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. 11

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-of-staters significantly more than in-staters for a hunting license. 12 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.


  1.  Jump to essay-1Hudson County Water Co. v. McCarter,, 209 U.S. 349, 356-57 (1908).
  2.  Jump to essay-2Sporhase 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).
  3.  Jump to essay-3See, 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).
  4.  Jump to essay-4Bayside Fish Co. v. Gentry, 297 U.S. 422, 426 (1936).
  5.  Jump to essay-5Manchester v. Massachusetts, 139 U.S. 240 (1891); Geer v. Connecticut, 161 U.S. 519 (1896).
  6.  Jump to essay-6Miller v. McLaughlin, 281 U.S. 261, 264 (1930).
  7.  Jump to essay-7Bayside 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).
  8.  Jump to essay-8Geer v. Connecticut, 161 U.S. 519, 529 (1896).
  9.  Jump to essay-9See, 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).
  10.  Jump to essay-10441 U.S. 322 (1979) (formally overruling Geer).
  11.  Jump to essay-11441 U.S. at 336, 338-39.
  12.  Jump to essay-12Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371 (1978).