Sam Polles, Ph. D.
Office of the Attorney GeneralSeptember 19, 2013
2013 WL 5770439 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2013-00245
*1 September 19, 2013
Re: Department Authority Relating to Wildlife Enclosures.
*1 Sam Polles, Ph. D.
*1 Executive Director
*1 Mississippi Dept. Of Wildlife,
*1 Fisheries and Park
*1 1505 Eastover Drive
*1 Jackson, MS 39211-6374
Dear Dr. Polles:
*1 Attorney General Jim Hood has received your request for an official opinion of this office and assigned it to me for response.
Facts and Issues Presented
*1 Your letter indicates that the Performance Evaluation and Expenditure Review Committee (“PEER”) performed a review of the Mississippi Department of Wildlife Fisheries and Parks (the “Department”) and the management of certain wildlife species. With regard to the Department's management of white-tailed deer wildlife enclosures, PEER disagreed with the Department's management practices. Specifically, PEER disagreed with the Department's practice of granting permits and thus allowing enclosures that prevent the free ingress and egress of white-tailed deer. Although we were not provided a copy of the PEER report, we did locate and review the document and understand, as a general matter, that PEER does not believe such enclosures are authorized under state law or that the Department is authorized under state law to allow, through the permitting process, such enclosures to exist. Alternatively, as we read the PEER report, if the current statutes can be read to authorize such enclosures, PEER does not believe that the Legislature could have authorized such enclosures without violating the Public Trust Doctrine.
*1 As noted in your letter, PEER's recommendations include:
*1 Such policies should address the removal of white-tailed deer from enclosures that are not established for the specific purposes provided for in statute law. Any removal of deer should be in conformity with the best scientific advice and guidance available.... In the event that litigation is filed regarding the department's authority to regulate enclosures of native white-tailed deer, the department should take no action until such litigation is resolved.
*1 Your letter then poses four questions which are addressed below:
Analysis and Discussion
*1 1. What authority is granted to the Commission under current statutes, specifically Miss. Code Ann. Sections 49-7-58(4), 49-7-58.1, 49-7-58.3, 49-7-58.4 and 49-1 1-3(3)(a), over enclosures that prevent the free ingress and egress of wild animals?
*1 In response, the best answer is provided by reference to the statutes. Section 49-7-58(3) states in relevant part: “The Commission on Wildlife, Fisheries and Parks and the Department of Wildlife, Fisheries and Parks shall have plenary authority in matters related to the importation of white-tailed deer, white-tailed deer in enclosures, and prevention of the introduction of chronic wasting disease into the native wildlife population.” According to Merriam's Online Dictionary, “plenary” means “complete in every respect: absolute, unqualified.” Thus, Section 49-7-58(3) gives the Commission ““complete” authority with regard to regulatory matters relating to white-tailed deer in enclosures.
*2 Section 49-7-58.1 appears to be a recognition by the Legislature of the existence of white-tailed deer containing enclosures, their lawful existence and the Commission's authority to regulate such enclosures. Section 49-7-58.1 states:
*2 (1) The owner of any enclosure containing white-tailed deer that prevents the free egress of white-tailed deer from the enclosed area shall notify and register with the Department of Wildlife, Fisheries and Parks. The person shall give his name, the location of the enclosure, the acreage within the enclosure, and whether any deer have been imported into the state and placed in the enclosure, and any other information required by the Commissioner on Wildlife, Fisheries and Parks.
*2 (2) Persons who constructed an enclosure prior to July 1, 2003, shall have until January 1, 2004, to notify and provide the information required under this section. The person shall use acceptable hunting and wildlife management practices as may be determined by the department.
*2 (3) The owner of such an enclosure shall comply with any testing ofwhite-tailed deer harvested within the enclosure as may be required by the department. If chronic wasting disease is diagnosed within five (5) miles of the enclosure, the owner of such enclosure shall allow department personnel to enter the enclosure to utilize lethal collection methods to obtain tissue samples for testing. If chronic wasting disease is diagnosed within the enclosure, the owner shall allow department personnel to enter the enclosure and depopulate the white-tailed deer within the enclosure.
*2 (4) A violation of this section is a Class I violation and is punishable as provided in Section 49-7-141.
*2 (Emphasis added). The above provisions of Section 49-7-58.1 are, in the opinion of this office, a clear expression of the Legislature's understanding that white-tailed deer enclosures exist and are to be regulated by the Department.
*2 Section 49-7-58.3 provides that “[t]he commission may regulate the hunting of nonnative cervids in noncommercial wildlife enclosures, and the Department of Wildlife, Fisheries and Parks may enforce such regulations and laws in the same manner as commercial wildlife enclosures as provided in Section 49-11-25.” Because this section discusses only hunting of non-native cervids, this statute does not in our opinion affect the Department or Commission's authority over white-tailed deer enclosures.
*2 Section 49-7-58.4 states in relevant part:
*2 (1) The Commission on Wildlife, Fisheries and Parks and the Department of Wildlife, Fisheries and Parks shall have plenary power to regulate all commercial and noncommercial wild animal enclosures in order to conserve and protect native wildlife for all citizens to enjoy and to protect our recreational economy dependent on native wildlife resources.
*2 (2) The Commission on Wildlife, Fisheries and Parks shall regulate any facility that prevents the free ingress and egress of native or nonnative cervids as the same are defined by the commission. The commission may promulgate rules and regulations requiring the issuance of permits and the payment of a reasonable fee therefor. Regulations promulgated under this authority must have a majority vote of the commission to be adopted.
*3 (Emphasis added). As with the other statutes discussed above, these provisions clearly acknowledge the existence of wildlife animal enclosures containing native cervids and the Commissions authority to regulate and license/permit the same.
*3 Section 49-1 1-3(3)(a) provides that “[t]he commission may regulate the hunting of nonnative cervids within a commercial wildlife enclosure, and the department may enter such enclosure as provided under Section 49-11-25 and enforce such regulations.” Because this section discusses only regulation and hunting of non-native cervids, this statute does not in our opinion affect the Department or Commission's authority over white-tailed deer enclosures.
*3 2. Is there a current statement of the Public Trust Doctrine in statute or case law in Mississippi as it applies to white-tailed deer, and if so how does that apply to enclosures that prevent the free ingress and egress of white-tailed deer?
*3 There is a relatively recent acknowledgment of the Public Trust Doctrine found in Bayview Land, Ltd. v. State ex rel. Clark, 950 So.2d 966, 972 -973 (Miss. 2006). However, in that case, the Court stated that this “State has adhered to the doctrine of public trust, applying it in both sixteenth section lands as well as tidelands.” Id. We found no cases applying the doctrine in the context of wildlife enclosures. We reviewed the Mississippi court decision in Ex parte Fritz, 38 So. 722, 723 (Miss. 1905) which was referenced in the PEER report in connection with the Public Trust Doctrine. There the Mississippi court held:
*3 It is perfectly clear that he does not own the fish in Horn Lake, and this would be true even if he owned the bed of the entire lake and all its waters. Fish are feræ naturæ. They are incapable, until actually taken, of absolute ownership, except in artificial lakes or in small ponds that are entirely land locked. In all running streams, large lakes, small lakes with outlets into other waters, the right of the state to regulate the time, the manner, and extent of the taking of fish is unquestioned. It is part of the police powers of the state, which has never been parted with, and cannot be surrendered.
*3 Ex parte Fritz, 38 So. at 723. In the Fritz case, at issue was a local ordinance prohibiting the taking of fish with certain types of nets. The Court citing the above language held that the right of the Legislature to regulate or delegate regulatory authority regarding the taking of fish was unquestioned. In the factual scenario raised in your letter, there seems to be no question but that the Commission or Department is in fact regulating the hunting of deer throughout the state to include those contained in the private wildlife enclosures recognized in various statutory pronouncements by the Legislature. Thus, we do not believe that the Commission's continuing future regulations consistent with its past regulatory acts would violate the principles set forth in Ex Parte Fritz. We note that our reading of the PEER report is that PEER does not question the fact that the Commission is regulating in this area but rather questions the wisdom of the regulations and/or the scientific validity of such regulations. Issues involving the wisdom or appropriateness of the Commission's regulations requires a factual or policy determination upon which our office does not opine.
*4 Moreover, it is the opinion of this office that Supreme Court's acknowledgment of the doctrine of ferae naturae does not equate to an adoption of the Public Trust Doctrine with regard to wildlife. This office's review of the ferae naturae doctrine leads us to conclude that, although perhaps related, the ferae naturae principles are not synonymous with the Public Trust Doctrine rules. In Cinque Bambini Partnership v. State, 491 So.2d 508, 513 (Miss. 1986) the Mississippi Court discussed the genesis and evolution of the Public Trust Doctrine and the interplay of federal and state law as well as the limitations under now controlling state law as follows:
*4 Federal law recognizes state authority over trust properties as plenary;3 once the trust was funded, so to speak, the federal role was spent. Oregon ex rel. State Land Board v. Corvallis Sand and Gravel Co., 429 U.S. 363, 371, 376, 97 S.Ct. 582, 587, 589, 50 L.Ed.2d 550, 558, 562 (1977). State law in turn prohibits disposition or use of trust property except in furtherance of the public purpose. International Paper Co. v. Mississippi State Highway Dept., 271 So.2d 395, 399 (Miss. 1972); Treuting v. Bridge and Park Commission of City of Biloxi, 199 So.2d 627, 633 (Miss. 1967); Money v. Wood, 152 Miss. 17, 118 So. 357 (1928). The Attorney General repeatedly and correctly states in his brief that the State may not convey fee simple title to properties so held in trust “unless it is for a higher public purpose and then only by legislative enactment”. (Brief for Appellees and Cross-Appellant, filed April 18, 1984, at pp. 8, 16). See Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 452-54, 13 S.Ct. 110, 117-18, 36 L.Ed. 1018, 1042 (1892); Priewe v. Wisconsin State Land & Improvement Co., 93 Wis. 534, 67 N.W. 918 (1896) aff'd on reh., 103 Wis. 537, 79 N.W. 780 (1899).
*4 Cinque Bambini, 491 So.2d at 513. Under this analysis, the State can dispose of property held in public trust but only for a higher public purpose and only by legislative enactment. Given the facts as we understand them, these restrictions are not applicable here because the State has not conveyed the wildlife that purportedly would be held in public trust under the doctrine. As this opinion has pointed out, the State has retained regulatory authority over deer which would include actions including lethal depopulation if required. Moreover, the Legislature retains, albeit delegated by statute to the Commission, “plenary” authority over white-tailed deer in enclosures.
*4 Although no Mississippi cases give in-depth expositions on ferae naturae, cases from other jurisdictions do set forth historical discussions beginning with the advent of the doctrine under Roman law through its adoption in English common law and its ultimate pass through to American jurisprudence. See State v. Bartee, 894 S.W.2d 34, 41 (Tex. App.1994) and McDowell v. State, 785 P.2d 1 (Ak 1989). Ferae Naturae like the Public Trust Doctrine does have as a foundational element the notion that wildlife is owned by the state or perhaps as common ownership by the collective citizenry. However, the two doctrines appear to diverge on the ability of an individual, private citizen to obtain private ownership. As noted above, the Public Trust Doctrine tends to greatly restrict private ownership of lands held in public trust and allows such private ownership only where there is a higher public purpose and the legislature authorizes the specific ownership of land held in public trust. To the contrary, the application of and development of law regarding ferae naturae starts from the proposition that the rights of an individual citizen to lawfully take and use wildlife is a fundamental principle of the law.
*5 From a historical perspective, a Texas appellate court has stated:
*5 History reveals a long recognition of common ownership in game and wild animals and its developing subjectivity to governmental authority. At one point the law of ancient Athens forbade the killing of game. Roman law recognized common ownership, but imposed its regulations on the taking of wild animals. There is a history of varying controls exercised by the lawgiving power over the right of a citizen to acquire a qualified ownership in animals feræ naturæ evidenced by the Salic law, exemplified by the legislation of Charlemagne, and later by the Napoleonic Code which permitted police regulations to direct the manner in which common ownership was to be enjoyed. See Geer v. Connecticut, 161 U.S. 519, 522-26, 16 S.Ct. 600, 601-03, 40 L.Ed. 793 (1896).
*5 State v. Bartee, 894 S.W.2d 34, 41 (Tex. App.1994). In State v. Ward, 328 Mo. 658, 40 S.W.2d 1074, 1077 (1931) the Supreme Court of Missouri wrote:
*5 At a very remote time the right and power of the sovereign authority to regulate and control the taking of wild animals were asserted and recognized. Originally, the title seems to have been regarded as vested in the sovereign as a personal prerogative; but, on the granting of Magna Charta and the Charter of the Forest by Henry III in 1225, the rights of the sovereign in unreclaimed wild animals were limited, and the rule of the Roman Law restricting the sovereign power to controlling and regulating the taking of such animals became the common law of England. The rule of the Civil Law recognizing the qualified title of the sovereign in wild animals, having been adopted by England, became the common law of the United States, and here the rule is that the general ownership of wild animals, as far as they are capable of ownership, is in the state, not as a proprietor, but in its collective sovereign capacity as the representative and for the benefit of all its citizens in common.
*5 Id. (citing 3A C.J.S. Animals § 6 at 477 (1973)).
*5 As the United States Supreme Court has noted it is “because of such ownership, and in the exercise of its police power [that] the state may regulate and control the taking, subsequent use and property rights that may be acquired therein.” Lacoste v. Department of Conservation of State of Louisiana, 263 U.S. 545, 549, 44 S.Ct. 186, 187 (1924). Wild animals remain the property of the state on behalf of its citizen or in the citizenry as a whole unless the state chooses to allow private ownership. State ex rel. Visser v. State Fish and Game Commission, 437 P.2d 373, 376 (Mont. 1968). Because wild animals are held for the public benefit, a legislature “may impose such terms and conditions as it sees fit on the acquiring of ownership of these wild animals.” Id. However, the primary justification for regulation of wildlife “is the necessity for protecting the same from extinction, and thus to preserve and perpetuate to the individual members of the community the inalienable rights which they have had from time immemorial.” McDowell v. State, 785 P.2d 1, 11 -12 (Ak. 1989). States have recognized that for the ownership of wildlife to pass purely to a private individual, possession must first occur in accordance with state law. For example, the Montana Court has held that the killing and possession of wildlife not taken and tagged in accordance state law is insufficient to pass title to the private individual possessing the wild game. Visser, 437 P.2d 373 at 377 (“If one possesses a game animal not tagged in accordance with the above statute, it is possessed in violation of the law ... [and] Game wardens have the authority and the duty to ‘confiscate all game ...possessed in violation of the law, or the orders, rules and regulations of the commission.”). Similarly, the Texas appellate court has held that
*6 If the person who reduces an animal from the wild state does so in compliance with the law, he gains ownership of it; otherwise, its ownership remains in the state. A wrongful reducing to possession of creature feræ naturæ cannot form the basis of ownership.
*6 State v. Bartee, 894 S.W.2d 34.
*6 Our review of the law regarding ferae naturae indicates that there are common principles with those found in the Public Trust Doctrine. However, the two doctrines appear to diverge in that the Public Trust Doctrine has significant restrictions on any alienation of lands or riparian rights held in public trust whereas the law regarding ferae naturae acknowledges a long standing right of individual citizens and to take and use game so long as the taking in consistent with applicable laws. Thus, in the opinion of this office a state can allow for the lawful taking of game without meeting the strenuous standards set out under the Public Trust Doctrine.
*6 We, however, do not believe that application of the doctrine of ferae naturae would act to invalidate the actions of the Legislature or Commission in this matter. In the opinion of this office, the Legislature has acknowledged the existence of wildlife enclosures through various statutes. Additionally, the Legislature has given the “Commission ... plenary authority in matters related to ... white-tailed deer in enclosures.” Miss. Code Ann. Section 49-7-58. It is the opinion of this office that when the Legislature gave plenary authority to the Commission over “white-tailed deer in enclosures,” this act is in recognition of the continuing regulation by the State of the deer. If the Legislature or Commission, by their acts, were attempting to bestow ownership rights in the deer to private citizens, the State's continued interest in regulating the deer would be at best limited. To the contrary this office concludes that the Legislature has allowed for the scenario in which “ferae naturae” such as deer are within confines on private land, but nevertheless remain wild animals subject to regulation by the State and Commission in a manner which is for the benefit of the public. If such deer were, in fact, owned by the land owners by virtue of building enclosures, the continued regulation by the State over such issues as hunting seasons, manner of hunting and other issues would be in question.
*6 Accordingly, it is the opinion of this office that the current statutory provisions that acknowledge the existence and regulation of wildlife enclosures are within the Legislature's prerogative. “Statutes are presumed constitutional” unless their constitutional infirmity is shown, “beyond all reasonable doubt.” Bond v. Marion County Bd. of Sup'rs, 807 So.2d 1208, 1220 (Miss. 2001). Moreover as discussed below, the current statutes require that regulatory authority be exercised to preserve native wildlife for the public. The public policy of this State is determined by the Legislature. S.G. v. D.C., 13 So.3d 269, 279 (Miss. 2009). Given that acts of the Legislature are presumptively valid and the Legislature's authority as the author of public policy, this office can find no basis on which to conclude that the current statutory and regulatory scheme relating to white-tailed deer would violate the Public Trust Doctrine as applied to wildlife.
*7 With regard to the limitations on the Commission's regulatory authority, we believe such limitations are placed on the Commission and Department by statute. Section 49-7-58.4 gives the Commission and Department “plenary power to regulate all ... animal enclosures” but requires such authority to be exercised in a manner “to conserve and protect native wildlife for all citizens to enjoy and to protect our recreational economy dependent on native wildlife resources.” This statute clearly requires the Commission to regulate in a manner designed to protect the public interest; however, the scope and nature of the regulations necessary or appropriate to protect the public interest is a factual matter delegated to the expertise of the Commission in the first instance. Our office cannot opine on whether the Commissions acts are factually appropriate or scientifically valid.
*7 3. Based on your responses to question 1, and 2, what authority, if any, does the Commission have, in statute and under the Public Trust Doctrine, to do the things recommended in the PEER report such as remove white-tailed deer from an enclosure that prevents the free ingress and egress of white-tailed deer?
*7 The only PEER recommendation that you identified in your letter is the removal of white-tailed deer from a private enclosure. We are uncertain on what terms PEER is suggesting you remove the deer. Obviously, the Commission and Department encounter situations in which the pertinent statutes require the landowner to grant access for the purpose of “lethal collection” of the deer population. However, short of statutory authorization or perhaps some authority granted under a valid regulation by the Commission, we are unaware of any authority of the Commission or Department to simply enter upon private property for the purpose of removing white-tailed deer from the property. The statutes discussed above indicate, at the least, an implicit acknowledgment by the Legislature of a landowner's right to build or own a wildlife enclosure if it is registered with the Department and operated within regulatory requirements.
*7 4. Finally, does the Public Trust Doctrine and/or authority of the Commission, supercede, private landowners' rights to erect a fence of any type or kind (specifically a fence that prevents the free ingress and egress) on his or her lands?
*7 This office is unaware of any statute or common law doctrine which would prohibit a landowner from erecting a fence around his property other than zoning ordinances and similar laws or regulations that are not applicable here. Likewise, we found no law that would prevent a landowner from building a fence for the purpose of creating a wildlife enclosure. That said, we offer no opinion on whether the Legislature could pass such a prohibition or whether the Commission in the exercise of its regulatory duties given appropriate facts could require fences to allow for ingress and egress of white-tailed deer. Any such law or regulation would have to pass constitutional muster and would involve balancing the rights of the State to regulate wildlife issues versus the property owner's attendant property rights.
*8 If this office can be of further assistance, do not hesitate to contact us.
2013 WL 5770439 (Miss.A.G.)
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