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I have tried to accurately reproduce his letter here. Unfortunately paragraph breaks don't always survive the conversion process.
The following is mainly a discussion on the public trust doctrine. However, in the states where the National Trappers Association (NTA), state trapper organization affiliates and other plaintiffs are involved in litigation on the subject, alternative counts have also been included. For example, in California, the NTA, the California Trappers Association CTA) and individual trappers have intervened in an action filed by the National Audubon Society on a federal pre-emption theory that the state ballot initiative passed in November 1998 that banned the leg-hold trap will adversely impact the ability to protect certain endangered birds from predation by non-native fox and other species. National Audubon Society, et al. v. Davis, et al., Civil act. No. 98-4610 (CAL), (U.S. Dist. Ct., N.D.CA. 1998). On February 3, l999, the Court granted a preliminary injunction holding that the state leg-hold trapping ban did not apply to federal employees engaged in preserving endangered species. If a permanent injunction is granted to all persons, a separate case on the public trust doctrine will be filed on previous ballot initiatives.
In addition to the public trust doctrine issue, another alternative count is being raised in NTA cases in Arizona and Colorado on the issue of the ballot initiative being a "administrative" action as opposed to a "management" decision and, therefore, void in that administrative responsibility rests solely with the government. Arizona Desert Bighorn Sheep, Inc., et al. v. Shroufe, et al., No. CV 990377 (Div. 4) (Super. Ct. of Yavapi Co. 1999); Colorado v. Jensen, Case No. 99 M 46 (Co. Ct. of Chaffee Co. l999); Colorado v. Davis, Case No. 99 M 118 (Co. Ct. of Saguache Co. l999). [The Colorado cases are criminal cases].
In Alaska, a suit was brought to challenge a proposed 1998 ballot initiative on wildlife management on the ground that the state constitution gave the legislature the sole and exclusive right to manage fish and wildlife, and therefore, any state ballot initiatives regarding such management would be inappropriate. Although the lower court supported that contention and blocked the pending ballot initiative on the method of trapping wolves, in August 1998, the Supreme Court of Alaska over turned the lower court decision and let the ballot initiatives proceed. (The initiative fortunately failed in the November election). In an opinion issued in January 1999, the Court held that the constitutional history clearly demonstrated by the debate that the provision was not intended to exclude ballot initiatives on such issues. Consequently, the common law public trust doctrine was not the subject of the court’s determination; rather, the specific language of the constitutional provision and the history of its consideration at the Alaska constitutional convention. Brooks v. Wright, No. 2-8676, 4FA-97-879 CE (Sup.Ct of Alas. 1999)
As outlined above, in the NTA’s actions, each state has approached the issue differently in bringing the matter before the courts. If successful, the common law public trust doctrine would block further state ballot initiatives on wildlife and fish resource management subjects, thereby, saving literally millions of dollars and thousands of hours spent in state campaigns involving such issues.
Obviously, the trappers, hunters, fishermen, conservation groups and the agro-business community are justifiably concerned about the success of state ballot initiatives that materially interfere with the orderly professional management of renewable wildlife and marine resources. Several years ago anti-hunting, trapping and fishing groups made a determination that the best method of blocking consumptive use of wildlife and marine resources was to embark on campaigns in those twenty-four (24) states that permit state ballot initiatives. The well thought-out program was to take on various issues to slowly erode the prerogatives of the state government to manage wildlife and fish by initiating individual ballot measures. For example, ban the use of the leg-hold trap; ban bow hunting for deer; ban bear hunting with dogs; prohibit fishing in given areas and many other such issues. At first, their efforts were unsuccessful-but they have learned.
In 1996, in eight (8) anti hunting and fishing ballot initiatives, six (6) were successful. In the recent election, however, the sportsmen were successful in five (5) of six (6) issues. I believe we can expect another round of issues in the year 2000 with millions of dollars being spent once more to fight the efforts. The "anti’s" usually out spend our side and have extremely sophisticated media campaigns.1 Although the sportsmen should have been united in these efforts, prior to l998, the wing-shooter really did not become interested in the problems of the bear hunter and the fishermen did not become concerned with the problems of the bow hunter, even though the issues were not bow hunting or fishing in and of themselves, but concerned the basic philosophy of consumptive use of renewable wildlife and marine resources.
However, an historic and monumental step was taken with the formation of a Ballot Issues Coalition (BIC) on February 14th, l998 that is now composed of over twenty (20) conservation and sportsmen’s groups. This effort was designed to pool financial and human resources to fight those ballot issues in the several states that will have them. As Washington Counsel for the National Trappers Association (NTA), I was elected Chairman of BIC. Although we made some mistakes, I believe we made some real progress in uniting the sportsmen and others in successfully meeting the challenges. On the other hand, we believe we should also pursue the legal avenue.
The public trust doctrine theory in a sentence is: that the state has an affirmative duty to protect, manage and conserve the fish and resident wildlife under a public trust doctrine and, therefore, it cannot relinquish that obligation to a popular vote to establish management, protection, and conservation practices for renewable wildlife and marine resources.
First of all, I am aware that the voice of the people is the "American way" and that "the people are the government," but I contend that theory has its limitations, not only what is prescribed by constitutional (state and federal) limitations, statutes and regulations, but by the common law limitations implicit in a central (or state) government as developed in Anglo-American jurisprudence. For example, there are certain functions of government (regardless of what type of government), that are only a function of government such as police powers and public safety. In a democracy, if "the people" want to influence change, they petition or lobby the government; they do not themselves implement or undertake the change short of the destruction of the government. My belief is that the management of wildlife and marine resources is also one of those functions that government cannot delegate to the people by permitting popular vote ballot initiatives.
If this theory has any validity, I believe that state ballots already implemented for the management of wildlife and marine resources are void ab initio and future state ballot initiatives could be blocked under the same reasoning.
Basically from the beginning of western philosophy, wild animals (i.e., ferae naturae) were regarded as occupying a unique status with governments. Under Roman law, wildlife on a private property was deemed the exclusive property of the landowner under an ownership in land theory but certainly not in contravention of the power of the state to control taking and use of something that, it was believed, belonged to everyone.2
As to affirmative government control of regulating the taking of wildlife in Europe, according to Sir William Blackstone, the origins of game laws were based upon the feudal system wherein the king (and his loyal barons) sought to keep weapons from those whom they had conquered. This notion came to England with the Saxon invasion of approximately 450 A.D. and the same concept was maintained after the Norman Conquest in 1066. The crown claimed the sole right to take (and, therefore, control) game and fish anywhere in the kingdom. He or she (God bless Queen Bess I & II, Mary, Ann and Victoria) believed they could, however, grant royal franchises concerning the control (i.e., management) of fish and game.
By the 13th century so many streams and rivers were held by these fanchisees that navigation was impeded. As a consequence, when the Magna Carta was written in 1215, it directed the removal of private netting structures under the reasoning that the crown held the navigable waters and the lands (and the fish and wildlife under and on them) in public trust and the crown could not relinquish that public trust. Royal power over wildlife in England has, indeed, given way to Parliament and Ministries but it is still the "government" that "holds" the fish and game in public trust. This recognition had a significant impact on just "how" the United States would treat the fish and wildlife resource.
The first case to come before the Supreme Court regarding the relationship of government and citizens with respect to wildlife was in Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842). In that case a riparian landowner sought to exclude all others from taking oysters from certain mudflats in the Raritan River in New Jersey. The plaintiff claimed to own both the riparian and submerged lands of the river by tracing his title to a grant in 1664 from King Charles II to the Duke of York who, in turn, conveyed the lands where the plaintiff was a successor in title.
Chief Justice Taney held that "dominion and property in navigable waters, and the lands under them [were] held by the King as a public trust" and that it "must be regarded as settled in England against the right of the king since the Magna Carta," to make a private grant of such lands and waters. [Emphasis added]. Id. at 420. By virtue of the crown’s public responsibility, it was without power to abridge "the public common of piscary." [i.e., the right of fishing]. Id. at 412. Justice Taney stated that when the people of New Jersey took possession of "the reins of government, and took into their own hands the powers of sovereignty, the prerogatives and regalities which before either belonged to the crown or the parliament, became immediately and rightfully vested in the state." Id. at 416.3 By this holding, the states were the successors to the crown and Parliament that established the precedent for the doctrine of state ownership of wildlife held as a public trust for all citizens.
The general doctrine of public trust has been recognized by the Supreme Court in the context of sovereignty over navigable waters with the seminal decision in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892) where the central tenets were articulated, to wit: The state holds natural resources in trust for the people and cannot alienate the trust res.4
In the Illinois Central case the Court considered the authority of the Illinois legislature to convey portions of the bed of Lake Michigan to a railroad. Id.. at 452. The Court held that since the state holds the submerged land in trust for the people, it cannot convey those lands without some clear benefit to the trust.
The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands remaining....
A grant of all the lands under the navigable waters of a State has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use andcontrol of private parties except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, then it can abdicate its police powers in the administration government the use of such powers may for a limited period be delegated of government and the preservation of peace. In the administration of to a municipality or other body, but there always remains with the State the right to revoke those powers and exercise them in a more direct manner, and one more comfortable to it wishes. So with trusts connected with public property, or property of a special character, like lands under navigable waters; they cannot be placed entirely beyond the direction and control of the State. [Emphasis added] Id.452-454.
The overall effect of the Illinois Central case has been followed many times in state cases applying the public trust doctrine to public resources.5 As it relates to wildlife and fish resources some states have adopted the doctrine legislatively or constitutionally.
The development of this concept evolved in "wildlife conservation law" with the establishment of a body of national wildlife law.
The paramount case in considering this doctrine came before the Supreme Court in the case of Greer v. Connecticut, 161 U.S. 519 (1896).7 The defendant Greer appealed his conviction under state law for possessing lawfully taken game birds with the intent of shipping them out of the State of Connecticut. The basic issue was whether the intent to ship the birds interfered with the power of Congress to regulate interstate commerce.8
Justice White held that the states had a right "to control and regulate the common property in game," that was to be exercised "as a trust for the benefit of the people." [Emphasis added]. Id. at 528-529. This case stood for some period of time for the state ownership doctrine of fish and resident wildlife as long as it was compatible with the rights conveyed to the federal government by the Constitution.
Four (4) years after the Greer decision, the Congress passed the Lacey Act of 1900 that prohibited interstate commerce of "any wild animals or birds" taken in violation of state law. 16 USC §§701, 3371-3378 and 18 USC §42.9 The land mark case of Missouri v. Holland, 252 U.S. 416 (1920) settled the supremacy of the federal treaty-making power for federal wildlife regulation by upholding the 1918 Migratory Bird Treaty Act. 39 Stat. 1702, T.S. No. 628; 16 USC §703 et seq. Consequently, the exclusivity of the state "ownership" of fish and wildlife had been somewhat eroded by the interpretation of commerce clause and the treaty making powers under the supremacy of the Constitution. This trend continued through a series of cases involving federal statutes,10 wildlife on federal lands under a federal property theory,11 and endangered species,12 to name a few.
The Supreme Court expressly overruled Greer, in part, in the case of Hughes v. Oklahoma,441 U.S. 322 (1979) by stating "that the time has revealed error." Id. The facts of Hughes were almost identical to Greer in that an Oklahoma law prohibited the shipment out of the state of minnows seined or otherwise obtained from Oklahoma state waters. In the opinion of the Court, the "state ownership" theory had "been eroded to the point of virtual extinction" in subsequent decisions. Id. at 336. The Court specifically recognized "the legitimate state concerns for conservation and protection of wild animals underlying the 19th century legal fiction of state ownership" but would not continue to regard wildlife as conceptually different from other natural resources. Id. at 339. Significantly, the Court concluded that "challenges under the Commerce Clause to state regulations of wild animals should be considered according to the same general rule applied to state of their natural resources." [Emphasis added]. In sum, while overruling Greer as to the constitutionality of state prohibitions against interstate shipping, Hughes preserved the trust responsibility set forth in Greer. Id. at 338.
At this juncture, an obvious pertinent inquiry is whether the cases that have eroded the state ownership theory have adversely impacted the validity of the public trust doctrines to a point where it has no efficacy as to the issue of challenging state wildlife and marine resource management issues. I think not.
Firstly, the Missouri v. Holland decision certainly did qualify the state ownership doctrine but did so in the context of reviewing the authority (and obligations) of a state as it relates to the federal government. That legal concept is entirely different than a question of state authority concerning private activity.13
There is also a developing body of law that now recognizes the rights of the states to recover monetary damages for injuries to wildlife where the defendants have sought to have the cases dismissed because the state did not have a "property interest."14 The reasoning was expressed appropriately in Maryland v. Amerada Hess Corp. 350 F.Supp. 1060 (D. Md. l972), mot. for relief den., 356 F. Supp 975 (D. Md. 1973):
[I]f the State is deemed to be the trustee of the waters, then as trustee the State must be empowered to bring suit to protect the corpus of the trust-i.e., the waters-for the beneficiaries of the trust-i.e., the public. Id. at 1067.
In the case of State v. New Jersey Central Power & Light, 125 N.J. 103, 308 A.2d 671 (1973), aff’d. 336 A.2d 750 (N.J. Super. Ct. Div. 1975), rev’d., 351 A.2d 337 (N.J. l976), the court expressed the concept that "[t]he State has not only the right but also the affirmative fiduciary obligation to ensure that the rights of the public to a viable marine environment are protected and to seek compensation for any diminution in that trust corpus." [Emphasis added].
In the case of State v. Fertterer, 841 P.2d 467 (Mont. 1992) the court held that the state holds wildlife "in its sovereign capacity for the use and benefit of the people generally." Id. at 470. See also, Arizona Cent. for Law in Pub. Int. v. Hassell, 837 P.2d 158 (Ariz. Ct. of App. l991).
In the case of In re Stewart Transportation Co., 495 F.2d 38 (E.D.Va.1980) the defendant challenged the right of the Commonwealth of Virginia or the federal government to recover monetary damages for the loss of migratory birds due to an oil spill on the grounds that neither government "owned" the birds. The court reasoned that both the federal and state governments have "a sovereign interest in preserving wildlife resources" and, therefore, could seek damages under a doctrine of parens patriae15 or a public trust doctrine. [Emphasis added]. Id. at 672.16
It has been observed that the public trust doctrine has been basically developed to protect the public interest for the "insufficiencies of the democratic process." The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, J. Sax, 68 Mich. L. Rev. 471, 521 (1970). This statement is particularly apt as it relates to ballot initiatives regarding the management of wildlife and marine resources. Most ballot issues are fueled by emotion and do not really have anything to do with management principles or concepts. Professor Sax states:
[w]hen a state holds a resource which is available for the free use of the general public a court will look with considerable skepticism upon any governmental conduct which is calculated either to reallocate that resource to more restricted uses or to subject public uses to the self-interest or private parties. Id. at 490.
More to the issue of wildlife and marine resources, another commentator has stated:The state as trustee, must prevent substantial impairment of the wildlife resource so as to preserve it for the beneficiaries--current and future generations. Under the public trust doctrine, the state must: (1) consider potential adverse impacts of any proposed activity over which it has administrative authority; (2) allow only activities that do not substantially impair the state’s wildlife resources; (3) continually monitor the impacts of an approved activity on the wildlife to ensure preservation of the corpus of the trust; and (4) bring suit under the parens patriae doctrine to enjoin harmful activities and/or to recover for damages to wildlife. The Public Trust and Parent Party Doctrines: Protecting Wildlife in Uncertain Times, 16 Pub. Land. L. Rev. 87, 96 (1995). 17
I would respectfully submit, therefore, that as recognized, for example, in the In re Stewart case, the common law is still viable in that the states have a continuing sovereign interest in wildlife under either the parens patriae or public trust doctrines. Although the "ownership" of wildlife doctrine was materially qualified under Missouri v. Holland, it was done in the context of state and federal authority and not the role of the state alone as it relates to its citizens. That decision did not alter the theory of the public trust responsibility of the state over fish and wildlife.
Further, as noted in the Alemeda Hess case, in its capacity as trustee of wildlife and marine resources under the public trust doctrine, the state arguably is endowed with the duties and obligations akin to an ordinary trustee.
[T]he classic doctrine seems analogous to a conventional real property trust: the state, as title holder, assumes the role of the trustee and must honor the interests of the trust’s beneficiaries, the public, in its management decisions. Supra, n. 4, Pearson, 15 Va. Envt’l.. L. at 714; see also, Slocum v. Borough of Belmar, 569 A.2d 312, 317 (N.J. Super. Ct. Law. Div. l989) [holding that the state has duties applicable to any other trustee].
Consequently, the delegation of those duties by the state through ballot initiatives to determine wildlife and marine resource management to the public beneficiaries would defeat the purposes of the trust and render it a nullity.18
Thus, a state ballot initiative regarding the management of wildlife and marine resources is an unlawful delegation of the state responsibility since the duty of the state to preserve and protect the interest of the public in wildlife and marine resources cannot be abdicated. The obligation and authority to manage and conserve these resources is vested exclusively in the state and, therefore, the state must make the determinations relating to law and regulations on hunting, trapping and fishing.
Alaska Supreme Court Justice Compton specifically addressed the issue in a concurring opinion in Pullen v. Ulmer, 923 P.2d 54 (Alaska 1996).
In Pullen, an organization of fisherman brought an action challenging the certification of a ballot initiative providing that subsistence, personal use, and sport fisheries would receive preference in the allocation of the salmon harvest. The Alaska Supreme Court held that the initiative constituted and "appropriation" of salmon that was prohibited by the Alaska Constitution.19 In his concurring opinion, Chief Justice Compton disagreed with the reasoning underlying the holding of the majority and instead opined that the ballot initiative was invalid under the Alaska Constitution that embodied the pubic trust doctrine principle.20
In my view an initiated [ballot] law is ‘clearly inapplicable’ to the allocation of a resource reserved to the people for their common use. This is particularly true when the State holds the resource in trust for all the people of the State. The people, as beneficiaries of trust is to be determine.
The uniqueness of this trust relationship in our government distinguishes it from most other relationships created by the Alaska Constitution....The trust relationship, the structure of the Department of Fish and Game, the agency responsible for implementing the State’s trust responsibilities for the benefit of all the people of the State, and the detailed professional requirements that must be possessed by the Commissioner of Fish and Game, the executive who directs that agency, persuasively demonstrate the clear inapplicability of initiated [ballot] laws which dictate policies regarding the ‘protection, management, conservation, and restoration of the fish and game resources of the state.’ [Emphasis added] Id. at 66.
It is interesting that the Alaska Supreme Court in the Wright case mentioned above really avoided holding the public trust doctrine was not viable; rather, that the history of the constitutional provision did not preclude ballot initiatives on wildlife issues.
Based upon the above discussion, I believe a successful argument can be made today- in any state- that state ballot initiatives on the management of wildlife and marine resources are as void as when the crown granted franchises for dominion over fish and the lands under the water are that was rejected in 1215 by the Magna Carta as a violation of the public trust doctrine regarding the crown’s obligation to the people. Nothing has changed in law since those dim dark days of yore as to that basic issue - even recognizing the qualification of the state ownership doctrine.
I would also note that this issue is not a First Amendment issue "abridging the freedom of speech." As I understand the issue in an unreported Idaho case several years ago, the question turned on whether the public had the same expertise for the management of wildlife as the state and, therefore, could participate in those decisions by way of the ballot box through state initiatives.[Although improbable, it is conceivable that the "public" could obtain the same expertise through retaining their own experts]. The pivotal issue is, however, whether a state can legally permit the public to take over any control of the management of wildlife under the public trust doctrine (as opposed to an arm of government such as a fish and game commission, an agency or the legislature-all being the "government").
In some states, in including California, the constitutions permit state ballots with the basic statement that the people have co-legislative power with the legislature. I do not believe that these provisions defeat the concept. For example, to take an extreme, could a popular vote remove completely the authority of the government to manage fish and wildlife? Presumably, the answer is "no" based on the duty of the government to manage, protect and conserve these renewable resources for all the people. If that point is conceded, however, it would seem to follow that this duty cannot be eroded incrementally by ballot initiatives. It is like being a "little bit pregnant" and I believe that the government has the sole, non-delegable duty to undertake these functions as it relates to fish and wildlife.
As mentioned above, in addition to the public trust doctrine, other alternative counts will be considered. Each state is reviewing the matter as to its state law, precedents and procedure, including the pre-emption theory.21 It is our anticipation that all of these cases will reach the respective State Supreme Courts by general election time in November 2000.
Best wishes.
Cordially,
Stephen S. Boynton
cc: Scott Hartman, Director National & International Affairs National Trappers Association
End Notes:
1The annual budgets for these organizations are significant. For example, in l996: Humane Society of the United States $37.8 million People for the Ethical Treatment of Animals $12 million International Fund for Animal Welfare $11.7 million Friends of Animals $4.9 million Fund for Animals $4.1 million Animal People (Dec. l997)
2See, The Public Trust: A Sovereign’s Ancient Prerogative Becomes the People’s Environmental Right, J. Stevens, 14 UCLA L. Rev. 195 (1980).
3Technically, Waddell would seem to only apply to the original thirteen (13) colonies. However, by 1845 it was to apply to all states subsequently admitted to the Union. See, Pollard v. Hagen, 44 U.S. (3 How) 212 (l845). Also, legislation admitting new states traditionally give the same rights, privileges and powers held by existing states. See also, Ward v. Race Horse, 163 U.S.. 504 (1896) for a discussion of state authority over wildlife.
4See discussion, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, R. Lazarus, 71 Iowa L. Rev. 631 (1986).
5See, e.g., California Trout, Inc. v. State Water Res. Control Bd., 255 Cal.Rptr. 184 (Ct. App. 1989) [applying public trust doctrine to fish]; Wade v. Kramer, 459 N.E.2d 1025 (Ill. Ct. App. 1985). See also, Illinois Central and the Public Trust Doctrine in State Law, E. Pearson, l5 Va. Envt’l. 713 (1996).
7For cases that discussed the issue prior to this time see, Smith v. Maryland, 59 U.S. (18 (How) 71 (1855); McCready v. Virginia, 94 U.S. 391 (1876); Manchester v. Massachusetts, 139 U.S. 240 (1891).
8 "The Congress shall have the power...To regulate Commerce with foreign Nations , and among the several States...." U.S. Const. art I, §8, cl. 2.
9As a footnote to history, the provision that dead wildlife imported into a state were subject to the laws of that state as if the wildlife were killed there was taken almost verbatim from legislation designed to permit "dry" states to block the importation of alcohol.
10See, e.g., Kleppe v. New Mexico, 426 U.S. 529 (1976) regarding the Wild Free-Roaming Horses and Burros Act. 16 USC §1331.
11See, e.g., New Mexico State Game Comm’n. v. Udall, 410 F.2d 1197 (10th Cir.), cert den., New Mexico State Game Comm’n v. Hickel, 396 U.S. 961 (1969); United States v. Brown, 552 F.2d 817 (8th Cir. 1977).
12See, e.g., Palila v. Hawaii Dept. of Land and Nat. Res., 471 F.Supp. 985 (D.Ha. 1979), aff’d., 639 F.2d 495 (9th Cir. 1981).
13In Toomer v. Witsell, 334 U.S.. 385 (1948) several South Carolina statutes governed commercial fishing in the three-mile zone off its coast. An action was brought by citizens of another state claiming that the fee differential was discriminatory and contravened the guarantees of the privileges and immunity classes of the Constitution. The court upheld the claim on the ground that the state ownership doctrine was "a fiction" but noted that the limitation imposed on state regulation derived, not from the absence of the state’s possession of wildlife, but rather from express constitutional limitation.
14See, e.g., Maryland v. Amerada Hess Corp, 350 F.Supp. 1060 (D. Md. 1972), mot. for relief den., 356 F.Supp. 975 (D. Md. 1973); Maine v. M/V Tamano, 357 F. Supp. 1097 (D. Me. 1973); contra, Commonwealth v. Agway, Inc., 210 Pa. Super. 150, 232 A.2d 69 (1967); State v. Dickinson Cheese Co., 200 N.W. 2d 59 (N.D. 1972).
15The definition of parens partiae literally means "father of his country" that would be the crown in England. In the U.S. it would mean the state as a sovereign referring to the sovereign power of guardianship. Blacks Law Dictionary.
16Recovery of damages also could be brought under a state statute authorizing such recovery. See, Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 628 f.2d 652 (1st Cir. 1980), cert.den., 450 U.S. 912 (1981). The same is true under federal statutes. See, e.g., 42 USC §9601 et seq. regarding the "Superfund" legislation.
17See discussion, National Audubon Soc’ty. v. Superior Ct. of Alpine Co., 189 Cal.Rptr. 346 (Cal. l983).
18See, Restatement (Second) of Trusts § 171 (1959). Also, the "duty of the trustee is not only to take and keep control of the trust assets, but to take and keep exclusive control. [Emphasis added]. Id. at § 175. Thus, the trustee has exclusive control over the trust property, subject only to limitations imposed by law or the trust instrument. See, e.g., Continental Bank & Trust Co. v. Country Club Mobile Estate, 632 P.2d 896 (Utah 1981).
19Alaska Const. Art. XI, § 7.
20Alaska Const. Art. VIII, §§ 2-3, and Art. XII, § 11; see, Owsichek v. Alaska Guide Licensing & Contr. Bd., 763 P.2d 488 (Alaska 1988).
21Several years ago, I successful brought an action in California and Maryland on the federal pre-emption theory challenging a state law that prohibited the importation in to the state of marine mammal products for commercial resale. Since the sale of such products was specifically authorized by the Marine Mammal Protection Act, the state law had to fail. 16 USC §1361 et seq. The case was unreported in California but was in Maryland. Fouke v. Mandel, 386 F.Supp. 1341 (D.Md. 1974).
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